Petition for Writ of Certiorari — Dwight Mitchell, Petitioner v. Wilson Taylor, et al.

Supreme Court briefSep 4, 2018

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No.

IN THE

DWIGHT MITCHELL

Petitioner

WILSON TAYLOR ET. AL.

Respondents

• PETITION FOR A WRIT OF CERTOIRI

To THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONER

DWIGHT MITCHELL

P.O. Box 195

SHELBYVILLE, KY 40066

615-573-4063

Questions Presented

Was it proper for the lower court to throw out a properly plead 42 U.S.C.

§ 1983 cause of action for events in 2013 on a Rule 12 motion to dismiss

without looking at the merits when the lower court admitted 2013 was

within the statute of limitations?

When a plaintiff pleads fraudulent concealment to defend against a Rule

12 motion to dismiss based on statute of limitations, must he do more than

plead facts showing due diligence in order to prevail?

Did the lower courts' continuing violation analysis depart so far from Sixth

Circuit court precedent, precedent by the U.S. Supreme and precedent by

the Tennessee Supreme court as to make it in effect unavailable to future

plaintiffs?

Did the lower courts violate the will of the U.S. Congress and go against

Supreme court precedent by not applying the four year statute of limitations from 28 § USC 1658 to a claim regarding post-contract formation

misconduct?

(i)

Table of Contents

Questions Presented .................................i

Table of Authorities .................................iv

List of All Parties ...................................1

Opinions Below ....................................1

Jurisdiction ......................................2

Constitutional and Statutory Provisions Involved ...............2

Statement Of Facts Relevant To This Petition ..................5

Factual history 1994 2007 ..........................6

Factual history 2007 2013 ..........................6

Summary of Argument ...............................11

Argument.......................................12

Standard of Review ...............................12

The Plaintiff sufficiently plead claims for a 42 USC 1983 cause of action

for events that occurred 2013 and the district court admitted those

events were within the statute of limitations . . . . . . . . . . . . . . . . 13

III The due diligence standard that the lower courts applied conificts with

the standard put forward by other district courts in the same circuit,

the Sixth Circuit itself, and ultimately the U.S. Supreme Court .....16

A. Steps Plaintiff Asserted That He Took That Show Due Diligence. 18

IV The Sixth Circuit contradicted itself, findings by the district court

and its own precedent and Supreme Court precedent in its continuing

violation analysis to the extent that it would make of null effect any

future Plaintiff's use of the continuing violation doctrine.........22

V The Sixth Circuit holding that Plaintiff does not have a four year

statute of limitations under Jones v. R.R. Donnelley &Sons Co. contradicts holdings by the U.S. Supreme Court and most other U.S. circuit

courts........................................28

(ii)

Conclusion

Appendices

Magistrate Report and Recommendations ....................1

District Court Order .................................18

Sixth Circuit Court Order ..............................25

Bn Banc Order ....................................32

(iii)

Table of Authorities

CASES

DMZI

Adickes v. SHKress &Co., 398 Us 144 (1970) ...............13

Dayco Corp. v. Goodyear Tire &Rubber Co.,

523 F. 2d 389 (6th Circuit 1975) ...................12,17

First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938 (1995) .......12

Goldsmith v. Sharrett, Court of Appeals (6th Circuit 2015) ........22

Graham v. National Collegiate Athletic Assn,

804 F.2d 953 (6th Cir. 1986) .........................16

Hensley v. City of Columbus, 557 F. 3d 693 Court of Appeals (6th

Circuit 2009) ................................22

In re Hill, 775 F'.2d 1385 (9th Cir. 1985) ..................12

Jones v. R.R. Donnelley &Sons Co.,

541 U.S. 369 (2004) ..........................29,30

Kostrzewa v. City of Troy, 247 F.3d 633 (6th Cir2001) ...........13

Kuhnle Brothers, Inc. v. County of Geauga,

103 F. 3d 516 (6th Cir. 1997) .......................23

Marcus Belton v. City of Memphis, No. CT00390714 (Tenn. COA

Memphis 2016) .............................28,31

Mitchell v. Crescent River Port Pilots Assn,

265 Fed. Appx. 363 (5th Cir. 2008) ...................30

National Railroad Passenger Corporation v. Morgan,

536 US 101 (Supreme Court 2002) .................22,26

Palmer v. Rd. of Educ. Comm. Unit School Dist.,

46 F. 3d 682 (7th Cir. 1995) .......................24

Patterson v. McLean Credit Union, 491 US 164 (1989) ..........30

(iv)

Page

CASES-CONTINUED

Redwing V. Catholic Bishop for Memphis,

363 SW 3d 436 (Tenn. 2012) .....................16, 17

Resolution Trust Corp. v. Wood,

870 F. Supp. 797 (WD Tenn. 1994) .................12, 17

Roberson v. Tennessee, 399 F. 3d 792 (6th Cit 2005) ..........11, 13

Sevier v. Turner, 742 F. 2d 262 (6th Cit 1984) ...............13

Sherrill v. Souder, 325 S.W3d 584 (Tenn.2010) ..............17

State v. Coffee, 54 SW 3d 231 (Tent 2001) .............

21, 22, 27

Swehel v. City of River Rouge,

119 F. 3d 1259 (6th Circuit 1997) ..................16, 27

Tolbert v. State of Ohio, Dept. of Transportation,

172 F.3d 934 (6th Cit 1999) ..............12, 23, 24, 25, 26

Wood v. Carpenter, 101 US 135 (1879) ...................

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

28 U.S.C.

§1254 .....................................2

§1658 ....................................30

§ 1658(a)

..................................30

§1981 ....................................29

42 U.S.C.

§1981 ....................................31

§ 1983 .................................

11, 13

Tenn. Code Ann.

§ 28-3-104(a) ................................13

(v)

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES-CONTINUED

Page

§ 66-22-101 .................................15

§ 66-22-113 .................................15

§ 66-24-101(e)

............................... 15

OTHER AUTHORITIES

(vi)

List of All Parties

The Petitioner-is Dwight Mitchell.

The Respondents are Wilson Taylor, Tommy P. Thompson, Mary Holder,

and The City of Hartsville.

Opinions Below

The magistrate's report is unreported (Case 3:15-cv-01310 Document 88). It

recommended dismissal of all of Plaintiff's claims except for a state law claim

against Wilson Taylor for fraudulent concealment which it declined to exercise

supplemental jurisdiction over and is set out in the Appendix hereto (App. 1-17).

The district court order affirming the magistrate's recommendation is

unreported (Case 3:15-cv-01310 Document 98). It affirmed the magistrate's

report and denied Plaintiff's motion to amend. It is set out in the Appendix

hereto (App. 18-14).

The appeals court ruling affirming the the district court order is unreported

(Case: 16-6335 Document: 29-1) and is stamped "NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION" and is only signed by the clerk Deborah S. Hunt,

but is not signed by any judge who issued the opinion. It did leave open

Plaintiff's minor daughter still being within the statute of limitations but held

that the Plaintiff could not avail himself of her statute of limitations without

her being represented. (App. 29). It is set out in the Appendix hereto (App.

24-31). The appeals court ruling only dealt with the statute of limitations and

did not address any of the other reasons the district court granted the motions

to dismiss. (App. 30). En Banc review was denied on June 5, 2018. (App. 32)

Jurisdiction

The judgment of the Court of Appeals was entered on April 16, 2018. The

order denying the en banc petition was entered June 5, 2018. This Court has

jurisdiction under 28 U.S.C. § 1254

Constitutional and Statutory Provisions Involved

United States Constitution Amendment V:

No person shall.. .be deprived of life, liberty, or property, without

due process of law.

28 U.S.C. § 1658

Except as otherwise provided by law, a civil action arising

under an Act of Congress enacted after the date of the enactment of

this section may not be commenced later than 4 years after the cause

of action accrues.

Notwithstanding subsection (a), a private right of action that

involves a claim of fraud, deceit, manipulation, or contrivance in

contravention of a regulatory requirement concerning the securities

laws, as defined in section 3(a)(47) of the Securities Exchange Act of

1934 (15 U.S.C. 78c(a)(47)), may be brought not later than the earlier

of(1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation.

42 U.S.C. § 1981

Statement of equal rights 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.

"Make and enforce contracts" defined For purposes of this

section, the term "make and enforce contracts" includes the making,

performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the

contractual relationship.

Protection against impairment The rights protected by this

section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress, except

that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated or declaratory

relief was unavailable. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

Tenn. Code Ann. § 28-3-104(a)

(a)(1) Except as provided in subdivision (a)(2), the following actions shall be commenced within one (1) year alter the cause of action

accrued:

Actions for libel, injuries to the person, false imprisonment,

malicious prosecution, or breach of marriage promise;

Civil actions for compensatory or punitive damages, or both,

brought under the federal civil rights statutes; aAliand

Actions for statutory penalties

Tenn. Code Ann. § 66-22-101

Unless otherwise provided by law, to authenticate an instrument

or document for registration or recording in the office of the county

maker shall execute the instrument or document by that person's

original signature and such signature shall be either acknowledged

according to law or proved by at least two (2) subscribing witnesses.

The county register may refuse to record any instrument or document

not authenticated in accordance with this section.

Tenn. Code Ann. § 66-22-113

If the clerk or other officer who takes the probate or acknowledgment of a deed or other instrument fails or refuses to comply with

and discharge the duties required of the clerk or officer, the clerk or

officer shall forfeit and pay the sum of one hundred dollars ($100)

for the use of the county in which the clerk or officer resides, which

may be recovered by action of debt, in the name of the trustee of the

county; in the circuit or chancery court; and the clerk or officer shall,

moreover, be liable to the party injured for all damages the clerk or

officer may sustain by such failure or refusal, together with costs, to

be recovered by action on the case in the circuit or chancery court.

Statement Of Facts Relevant To This Petition

Tenn. Code Ann. § 66-24-101(e)

(e) Unless an instrument is acknowledged or proved, as provided

in chapter 22 of this title, or other applicable law:

The county register may refuse to register or note the instrument for registration; and

If the instrument conveys any interest in real property, including any lien on the property, no purchaser shall be required to

accept delivery of the instrument. If, however, an instrument not so

acknowledged or proved is otherwise validly registered, the instrument shall be deemed to be validly registered for the purposes of §

66-26-102 and 66-26-103, and in full compliance with all statutory

requirements set forth in § 66-22-101, and all interested parties shall

be on constructive notice of the contents of the instrument.

I Factual history 1994 2007

Defendant Thompson's family, which is white, once owned the property owned

by Plaintiff, who is Mack. (case: 3:15-cv-01310, doc 34, pageid# 289-291, 297). In

1994, Plaintiff took out a loan for $200,000 with Citizens Bank where Defendant

Thompson was a board member and Defendant Taylor president. (case: 3:15cv-01310, doe 34, pageid# 277-280, 286, 298-300; case 3:15-cv-01310, doc 34-1,

pageid# 312; case: 3:15-cv-01310, doe 8, pageid# 40). Citizens Bank knew the

title was flawed but hid this from Plaintiff. (case: 3:15-cv-01310, doe 34, pageid#

283, 290-291; case: 3:15-cv-01310, doc 34-3, pageid# 340-344). In 1996, Plaintiff

took out a loan for $50,000 with Citizens Bank. In 1997, Citizens Bank forged

Plaintiff's signature on a warranty deed which was notarized but not witnessed.

(case: 3:15-cv-01310, doe 8, pageid# 56); In 2002, Betty Lou Taylor, as trustee for

Hartsville Tennessee, assigned the deed of trust to herself and her assigns. (case:

3:15-cv-01310, doe 26-5, pageid# 153-; doe 26-6, pageid# 160). In 2002 when

Plaintiff was attempting to secure another loan from Citizens Bank, Wilson

Taylor told Plaintiff to talk to Thompson at the District Attorney's office. At

this meeting Thompson falsely accused Plaintiff of being a drug dealer with no

evidence whatsoever. (case: 3:15-cv-01310, doe 8, pageid# 39).

H Factual history 2007 2013

On July 17th or 18th 2007, Plaintiff took patient (Ms. V.) to the doctor after he

discovered wound on her foot. He was told to wash the wound with a solution of

Clorox and water which he did. (case: 3:15-cv-01310, doc 87-6, pageid# 877-878).

Guardian Home wound care nurses later came. Unknown to Plaintiff, they had

no wound care doctor's order. (case: 3:15-cv-01310, doc 87, pageid# 817). On

July 30, 2007, when Plaintiff was drawn away from his facility by a false lead

for a new patient, Guardian nurse Crystal Gibson falsely claimed discovery of

maggots on the foot of Ms. V. (case: 3:15-cv-01310, doe 87-4, pageid# 871-873;

case: 3:15-cv-01310, doe 87-6, 877-878). On August 2, 2007, state surveyors

did an investigation of Plaintiff's facility which resulted in no negative findings.

(case: 3:15-cv-01310, doe 87-5, pageid# 874). After a second investigation,

Plaintiff received a letter dated August 13, 2007, listing deficiencies and giving

Plaintiff 60 days to correct them. (case: 3:15-cv-01310, doe 34, pageid# 281; case:

3:15-cv-01310, doe 34-7, pageid# 370-375). On August 14, 2007, Defendant Jerry

Blassingame came with state surveyors and attempted to remove patients. (case:

3:15-cv-01310, doe 34, pageid# 279-281). Plaintiff rebuffed Mr. Blassingame by

showing him the August 13, 2007 letter giving him 60 days to address minor

deficiencies. (case: 3:15-cv-01310, doe 34-7, pageid# 370-375). Blassingame

later called Tommy Thompson.(case: 3:15-cv-01310, doe 34-2, pageid# 324-334).

Defendants Thompson, Blassingame, Russell, Cauthorn and members of the

police and sheriff's departments removed patients under pretenses of a warrant

but having neither warrant nor order authorizing the removal. (case: 3:15cv-01310, doe 57, pageid# 648) The August 15, 2007 raid took placebetween

7:00am 3pm. (case: 3:15-cv-01310, doe 57, pageid# 645-646). On August 15,

2007, Plaintiff was sent to Lucile Bond where he signed a receipt of documents

for the August 13 letters citing deficiencies and suspension of new admissions,

but no order of summary suspension. The order of summary suspension which

Defendant Thompson is now claiming authorized his actions was stamped after

4 pm, after the raid against Plaintiff's facility. (case: 3:15-cv-01310, doe 30-1,

pageid# 240). Nothing in the summary suspension order authorized removing

anyone. (case: 3:15-cv-01310, doe 30-1, pageid# 242) During the August 15, 2007,

Lucile Bond stated that they needed to use the "magic word" of "emergency"

to justify their actions. (case: 3:15-cv-01310, doe 87-1, pageid# 863-864). This

"emergency" hearing was done approximately two weeks after Crystal Gibson's

false accusations and the first inspection Plaintiff's facility. During the meeting,

of which Plaintiff had no notice, a supervisor from Defendant Guardian called

in and interrupted testimony by one of the state surveyors right as she was

asked about the foot of Ms. V. (case: 3:15-cv-01310, doe 87, pageid# 845) (case:

3:15-cv-01310, doe 117, pageid# 1088) Guardian employee Crystal Gibson

repeated her false claims about maggots. Id (case: 3:15-cv-01310, doe 57-4,

pageid# 659-660). The state surveyors did not corroborate Crystal Gibson's

testimony either through direct examination of Ms. V. or a review of the medical

records. Yet the Summary Suspension Order falsely states it was a "review

of the medical records" that showed the issue of maggots on the foot of Ms. V.

(case: 3:15-cv-01310, doe 30-1, pageid# 242). During subsequent hearings, the

administrative law judge (AU) stated that. the August 15,. 2007 hearing had

no "procedural safeguards" making it an informal meeting and that they must

"disregard." (case: 3:15-cv-01310, doe 34-6, pageid#id 361-364). Plaintiff showed

no maggots could have grown on the foot of Ms. V. because they daily bathed

it in a solution of Clorox and water. (case: 3:15-cv-01310, doe 57-4, pageid#

659-660). A state witness stated she had "never heard" of Clorox and water, but

the emergency room doctor's note showing he also used Clorox and water. Id. A

state surveyor,, when asked about Ms. V's foot stated that she didn't even look

at the foot of Ms. V. because she had talked to hospital personnel. (case: 3:15-cv01310, doe 17, pageid#1092) (transcript). Plaintiff gave unrebutted testimony

that hospital personnel stated the maggots were sterile wound care maggots and

thus must have been planted. The first hearing was abruptly stopped once it

became clear that Plaintiff was winning. (case 3:15-cv-01310, doe 34-6, pageid#

361-364). The ALJ stated that quorum required 10 of the same members return

to the next meeting.. (case: 3:15-cv01310, .doe 34-6, pageid#364). The State's

struggle to reach quorum caused the AlA to state that Plaintiff's rights were

being violated. (case: 3:15-cv-01310, doe 87-3, pageid# 869-870). Crystal Gibson

testified that Guardian had a doctor's order for wound care, but the other two

Guardian nurses stated they did not have one. (case: 3:15-cv-01310, doc 87-1,

pageid#859-862). At the final hearing, quorum was not met according to the

AL's definition as the State did not have 10 of the same board members return.

(case: 3:15-cv-01310, doe 87-3, pageid# 870).

Plaintiff made yearly calls (2007

2013) to the sheriff, police, DA and

county clerk inquiring about the warrant but he could never get a straight

answer. (case: 3:15-cv-01310, doe 8, pageid#45) (case: 3:15-cv-01310, doe 38,

pageid#435-436, 439-441). In 2012, Plaintiff sought to execute an eviction

warrant against occupants of his property with the sheriff, police, county clerk

and DA, but they all refused. (case 3:15-cv-01310, doe 65-1, pageid# 696-697,

698).

In 2008, because Plaintiff's business was closed, he entered into a lease

purchase agreement with Mick Riggario who wanted to set up a health care

facility on the same property. (case: 3:15-cv-01310, doe 26-5, pageid# 151-153).

Mr. Riggario initially made payments, but later stated that if Plaintiff would

not lower the price he would stop making payments and force Plaintiff into

foreclosure. Id. Mr. Riggario made did so, which forced Plaintiff to file for

bankruptcy. Id. Mr. Mitchell noticed that Mr. Riggario's attorney was also a

trustee in the same bankruptcy court. Id. In bankruptcy, Mr. Mitchell sought to

subpoena records including records about the warrant, but the court quashed

his subpoenas.

Citizens Bank got relief from stay in bankruptcy by falsely claiming to be

a secured creditor. (case: 3:15-cv-01310, doe 26-5, pageid# 153, case: 3:15-cv01310, doe 26-6, pageid# 163-173). Plaintiff's then attorney, Marjorie Kendall,

wrongly told him that he did not have to show for the proceedings. (case:

3:15-cv-01310, doe 38-2, pageid# 468-469, 470-472). In 2011, Citizens Bank

illegally foreclosed on Plaintiff's property, but attempted to cover this up by

changing the address of the property from 700 McMurray Blvd to 802 McMurray

Blvd. (case: 3:15-cv-01310, doe 38-2, pageid# 468-469, 470-472). Sometime

around 2013, Citizens Bank changed the address back to 700 McMurray Blvd,

which is significant because the time for adverse possession begins when the

deed is recorded. (case: 3:15-cv-01310, doe 38, pageid#429-440). Mary Holder,

registrar of deeds, recorded these fraudulent changes. In 2013, Plaintiff received

documentation from the U.S. Treasury Department that, for the first time, gave

him solid proof that there was no clear title to the property because the original

deeds were incorrect. (case: 3:15-cv-01310, doe 38-1, pageid# 444-451). This also

meant that Citizens Bank was not a secured creditor. Citizens Bank committed

fraud on the court and claimed that Plaintiff and his family did not live on the

property thus avoiding the Truth in Lending Act. (case 3:15-cv-01310, doe 8,

pageid# 39).

The discovery of the fraud with regards to Plaintiff's title prompted Plaintiff to do further investigation regarding the warrant. An archive search revealed that sheriff Ray Russell initially told the Hartsville Vidette that the

August 15, 2007 raid was done under a warrant. (case: 3:15-cv-01310, doe 26-7,

pageid# 183-190). Plaintiff sent a letter to state officials and finally received

written confirmation that there was no record of a warrant. Id.

In 2009, the Tennessee Department of Health sought to put Plaintiff on

the abuse registry and used events from 2007 in hearings against Plaintiff.

(case: 3:15-cv-01310, doe 117, pageid# 1088). The testimony of Crystal Gibson

was entered as hearsay. Id. The lawyer for Defendant Guardian stated in

court that he represented Guardian's other two nurses but he did not represent

Crystal Gibson. Id. He did not indicate whether Crystal Gibson still worked for

Guardian home. Id. Plaintiff timely appealed the 2009 initial order to place him

on the abuse registry. Id. Two years later in 2011, Susan Cooper, commissioner

for the Tennessee Department of Health, placed Plaintiff on the abuse registry

and fraudulently claimed to have reviewed Plaintiffs appeal. Id. Tennessee

law required that Plaintiff be allowed to file a brief, but Susan Cooper violated

Plaintiff's constitutional right to due process by ruling on his appeal without

first letting him file a brief Id.

In 2010, Plaintiff filed a complaint against Defendant Guardian in state

court. Id. Defendant Guardian, relied on witness immunity and the intracorporate conspiracy doctrine in its defense. Id. The state court dismissed for failure

to state a claim without stating which argument by Guardian it found credible.

Id. In 2013, Plaintiff refiled against because the order of dismissal was not

properly served under Tennessee statute. Id. That case was also dismissed on

the same grounds.

Plaintiff was told three times that Defendants wanted to negotiate. He

has a letter he sent them in response to these bad faith negotiations. (case:

3:15-cv-01310, doe 34, pageid# 293-294) (case: 3:15-cv-01310, doe 34-4, pageid#

355-359).

Summary of Argument

Writ of certiori should be granted because lower courts did not rule on the

gravamen of Plaintiff's complaint which is that he was injured in 2013 when

Citizen's Bank filed a fraudulent deed to take his property. (case: 3:15-cv-01310,

doe 38 pageid #431, 438 Answer to Motion to Dismiss of Mary Holder &City of

Hartsville). This is in the minimum one year statute of limitations in Tennessee

under 42 U.S.C. § 1983 as spelled out in Roberson ii Tennessee. Roberson v.

Tennessee, 399 F. 3d 792, 794 (6th Cir. 2005).

Writ of certiori should be also be granted because the lower courts wrongly

construed due diligence element of the doctrine of fraudulent concealment. All

that a plaintiff has to show is the actual steps he took in doing due diligence.

Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F. 2d 389, 394 (6th Circuit 1975)

He does not have to prove due diligence. Resolution Trust Corp. v. Wood, 870 F.

Supp. 797, 812 (WD Tenn. 1994)

Writ of certiori should be also be granted because the Sixth Circuit court

wrongly applied the "ill effects" doctrine under fraudulent concealment to post

2007 allegations of wrong doing when an "ill effect" cannot be applied to an

allegation of wrong doing or of concealment. Tolbert v. State of Ohio, Dept. of

Transportation, 172 F.3d 934, 940 (6th Cir. 1999).

Writ of certiori should be also be granted because the U.S. Supreme Court,

Tennessee Court of Appeals, and multiple federal courts have held that allegations of post contract formation conduct, such as termination or modification

of contracts, falls under a 4 year statute of limitations rather than a one year

statute of limitations.

Argument

I Standard of Review

Questions of law are reviewed de novo. First Options of Chicago, Inc. v. Kaplan,

514 U S. 938, 948 (1995) Questions of fact are review under an abuse of discretion standard. Id A courts decision to impose sanctions for failure to comply

with bankruptcy procedures is reviewed on an abuse of discretion standard. In

re Hill, 775 F.2d 1385, 1386 (9th Cir.1985).

IIPA

II The Plaintiff sufficiently plead claims for a 42 Usc 1983 cause of

action for events that occurred 2013 and the district court admitted

those events were within the statute of limitations.

The case Roberson v State of Tennessee states that any 42 U.S.C. § 1983 case that

is filed within 1 year is within the statute of limitations. Quoting "Tennessee

provides for a one-year limitations period for civil rights actions under § 1983.

See Tenn. Code Ann. § 28-3-104(a)

Roberson, 399 F. 3d at 794. "In reviewing

the ruling below, the panel must treat all well-pleaded allegations in the complaint as true." Id. A reviewing court must reverse a Rule 12(b) dismissal unless

it appears beyond doubt that Plaintiff can prove no set of facts under which

his complaint was timely filed. Id, Kostrzewa v. City of Troy, 247 F.3d 633, 638

(6th Cir.2001). "The statute of limitations commences to run when the plaintiff

knows or has reason to know of the injury which is the basis of his action. A

plaintiff has reason to know of his injury when he should have discovered it

through the exercise of reasonable diligence." Roberson, 399 E 3d at 794 quoting

Sevier v. Turner, 742 F. 2d 262, 272 (6th Cit 1984).

The elements of 42 USC § 1983 are 1) a plaintiff has been denied a

constitutional right and 2) that deprivation has happened under the color of

law. Adickes v. SHKress & Co., 398 US 144, 188 (1970) By the statute, color of

law means any "color of any statute, ordinance, regulation, custom, or usage."

Id. at 213 The Supreme Court has held that custom only takes the force of law

"by virtue of the persistent practices of state officials." Id. at 230.

The basis and gravamen of Plaintiffs action in this case is that he was

injured in 2013 when Citizen's Bank filed a fraudulent deed to take his property.

(case: 3:15-cv-01310, doc 38 pageid # 431, 438 Answer to Motion to Dismiss of

Mary Holder &City of Hartsville)(case: 3:15-cv-01310, doc 55 Answer to Reply

of Mary Holder &City of Hartsville pageid # 608) Prior to 2013, Citizens Bank

had sold property that it claimed to belong to Plaintiff, but that had an address

recorded as 802 McMurray Blvd. Id. At the time there was, and there is now,

property that never belonged to Plaintiff with the address 802 McMurray Blvd.

Plaintiff's property is 700 McMurray Blvd. It was not until 2013 when Citizens

Bank filed a fraudulent deed claiming that the property they illegally foreclosed

on was 700 McMurray Blvd that Plaintiff's injury from the loss of his property

occurred.

The district court and the Sixth Circuit Court recognized that Plaintiff

pled a cause of action against Wilson Taylor as his role of the president of

Citizens Bank, but said it was a state law claim of fraudulent concealment.

(App. 15,16,23,26) The district court also acknowledged that Plaintiff's assertion

that the property address changes were not discovered by him until September

19, 2012 and "the end of 2013" (Id. at 15) convenient dates because they fall

within the limitation period. (App. 20, 21).

Plaintiff raised a cause of action that in 2013, a date the district court

admitted was within the statute of limitations, that Defendants Wilson Taylor,

Mary Holder and others, under the color of law, injured him and deprived him of

his constitutionally protected right to property by taking his property through

the filing of a fraudulent deed. The magistrate, the district court and the Sixth

Circuit Court all agreed that at the very least Plaintiff still has a cause of action

against Wilson Taylor.

But Wilson Taylor could not record a deed by himself. Mary Holder by her

own admission knew that the deed was fraudulent. Defendant Holder falsely

claimed in her motion to dismiss that under Tennessee law she had a duty

to record even a fraudulent deed as long as it was correctly drawn up. (case:

3:15-cv-01310, doc 55, pageid# 606-610, Mary Holder's Motion To Dismiss). This

is incorrect because the law actually states that a registrar may refuse to record

a document that is not properly acknowledged or proved. Tenn. Code Ann. §

66-24-101(e); Id. § 66-22-101. Tennessee state law also holds register of deeds

personally liable for failure to property execute the duties of their office. Id. §

66-22-113 Defendant Holder recorded a document where Plaintiff's signature

was forged and that was notarized but not witnessed. (case 16-6355 doe 24-1

Plaintiff's Reply Brief page 8). She recorded deeds with incorrect property

descriptions. (First amended complaint case 3:15-cv-01310 doe 8 PagelD # 55).

She ultimately recorded the fraudulent address changes. (case 16-6355 doe 24-1

Plaintiff's Reply Brief page 8). Betty Lou Taylor is implicated in 2013 because, in

2002 in her role as the trustee of the City of Hartsville, she assigned the deed of

trust on Plaintiff's property to herself and her heirs. (case 16-6355 doe 24-1 page

16 Plaintiff's Reply Brief). Defendant Thompson is directly implicated because

as an officer of Citizens Bank he had a duty to approve loans and foreclosures.

Wilson Taylor sent Plaintiff to Defendant Thompson's attorney general's office

to discuss the loan. At that meeting Defendant Thompson showed racial animus

by accusing Plaintiff of being a drug dealer. (case: 3:15-cv-01310, doe 8, page 12

Complaint).

In Plaintiff's Motion to Amend and attached Second Amended Complaint

that the district court denied, Plaintiff laid out a cause of action for fraudulent conveyance for events that happened in 2013 and named Wilson Taylor,

Betty Lou Taylor, Betty Sue Hibdon, Tommy Thompson and Mary Holder as

defendants. (case 3:15-cv-01310 doe 95 pageid # 950-954 Plaintiff's Second

Amended Complaint)(case 3:15-cv-01310 doe 95-1 pageid # 962-964 Plaintiff's

Second Amended Complaint). The district court, without addressing his 2013

claim which it admitted was within the statute of limitations, simply said the

amendment would be "futile" because it didn't address the statute of limitations.

(App. 21,22) The Sixth Circuit court simply stated that Plaintiff's amended

complaint for "undergirding his his claim that he is entitled to tolling of the

limitations period", but did not at all address the fact that Plaintiff put forward

a claim that was within a one year statute of limitations. (App. 31).

III The due diligence standard that the lower courts applied conflicts

with the standard put forward by other district courts in the same

circuit, the Sixth Circuit itself, and ultimately the U.S. Supreme

Court.

When a state official covers up evidence it amounts to denial of access to the

courts. Swekel v. City of River Rouge, 119 F. 3d 1259, 1262 (6th Circuit 1997)

The right of access to the courts is a fundamental right protected by the Constitution. Id; Graham v. National Collegiate Athletic Assn, 804 F.2d 953, 959 (6th

Cit 1986).

The elements of fraudulent concealment are 1) that the defendant affirmatively concealed the plaintiff's injury or the identity of the wrongdoer or failed

to disclose material facts regarding the injury or the wrongdoer despite a duty

to do so (2) that the plaintiff could not have discovered the injury or the identity

of the wrongdoer despite reasonable care and diligence (3) that the defendant

knew that the plaintiff had been injured and the identity of the wrongdoer

and (4) that the defendant concealed material information from the plaintiff by

"withholding information or making use of some device to mislead' the plaintiff

in order to exclude suspicion or prevent inquiry. Redwing v. Catholic Bishop

for Memphis, 363 SW 3d 436, 462 (Tenn. 2012). The Redwing case followed

the reasoning of the Teeters case that it's not just knowledge of the injury itself

that is important, but also concealment of source of the injury. Id. at 458 The

Tennessee Supreme Càurt stated:

Following our decision in Teeters v. Currey, this Court refined the

discovery rule to make clear that it included not only the discovery of

the injury but also the discovery of the source of the injury. Sherrill

v. Souder, 325 S.W3d 584, 595 (Tenn.2010) (holding that the cause of

action accrues when the plaintiff discovers both the injury and the

"identity of the person or persons whose wrongful conduct caused the

injury");

Redwing, 363 SW 3d at 458

"A party seeking to avoid the bar of the statute on account of fraud must

aver and show that he used due diligence to detect it, and if he had the means

of discovery in his power, he will be held to have known it." Wood v. Carpenter,

101 US 135, 141 (1879) "While plaintiff was not required to prove it used due

diligence, plaintiff was required to affirmatively plead the element." Resolution

Rust, 870 F. Supp. at 812. A plaintiff filing outside the statute of limitations

"must fully plead the facts and circumstances surrounding his belated discovery"

Dayco Corp., 523 F. 2d at 394. A plaintiff not only has to plead due diligence but

also assert "what steps were taken" in doing due diligence. Id

In the present case, the only element of fraudulent concealment that the

lower courts asserted Plaintiff did not meet was due diligence. (App. 20, 28).

However Plaintiff asserted, and has given physical evidence to prove, that the

concealment was done by state actors, and that he took affirmative steps to

discover the concealment. The Plaintiff also showed that defendants made "use

of some device to mislead the plaintiff in order to exclude suspicion or prevent

inquiry" The District Court and Sixth Circuit court have conceded Plaintiff has

a fraudulent concealment claim against Wilson Taylor with regards to actions by

Citizens Bank of Hartsville, but they have chosen to overlook the involvement

Mary Holder, Tommy Thompson, Betty Lou Taylor and other state actors in

that fraudulent concealment.

A. Steps Plaintiff Asserted That He Took That Show Due Diligence.

In the 2007 hearing Plaintiff asked administrative law judge about the

warrant and was told that a warrant didn't matter. (case: 3:13-cv-01310,

doe 38, pageid# 436 Answer to Mary Holder And City Of Hartsville Motion

To Dismiss)(case: 16-6335 doe 24-1 page 20, 62 Plaintiff Reply Brief Exhibit

From 2007 through 2015 Plaintiff called and wrote letters to the Trousdale

County Sheriffs Department, District Attorney's office and Clerk's office

to find information about the supposed warrant. (case 3:15-cv-01310 doe

38 pageid # 436 Answer to Mary Holder And City Of Hartsville Motion To

Dismiss).

Plaintiff attempted to subpoena warrant in bankruptcy court but the

motion was quashed. (case: 16-6335 doe 24-1 pages 11, 46-53, 63-65

Plaintiff Reply Brief Exhibit 6, 10)

Plaintiff filed against Defendant Thompson with the Tennessee Board of

Professional Responsibility to get someone to investigate whether there

was a warrant. In that complaint he stated that the closure of his facility

happened between 8 and 9 am. (case 3:15-cv-01310 doe 26-7 pageid # 174

178 Motion for Review of Magistrate Order Exhibit C).

In 2013 Plaintiff received information from the U.S. Treasury Department

that showed that Citizens Bank did not have a secured lien which meant

what they were doing in bankruptcy was illegal. (case: 16-6335 doe 24-1

page 20 Plaintiff Reply Brief)

Upon finding out the issues with the lien, Plaintiff filed a motion to extend

in Judge Haynes court to do due diligence and further investigate evidents

fraudulently concealed by the defendants and their agents. (Case 3:13-cv00569 doe 41 pageid # 370).

Plaintiffs motion to extend was granted. (Case 3:13-cv-00569 doe 45

pageid # 379)

After Plaintiff's motion to extend was granted, Tennessee Attorney General

Robert Cooper drafting a motion to reconsider the order for extension

of time, stating in part that "All allegations of fraudulent concealment,

while vigorously denied, are irrelevant if grounds existed for the Board

of Licensing Health Facilities to conclude that the conditions at the Sun

Valley Home for the Aged were detrimental to the welfare of its residents."

(case 3:13-cv-00569 doe 47 pageid # 381).

Plaintiff eventually received letters in 2013 from Hartsville officials admitting that they had no warrant on record. (Case 3:15-cv-01310 Document

26-7 pageid # 183-188 Motion for Review of Magistrate Order Exhibits 4-6)

Defendant Tommy Thompson stated in his Motion to Dismiss that he did

not act off of a warrant but acted from an order of summary suspension.

(case 3:13-cv-00569 doe 29 pageid # 182)

Upon inspection of the summary suspension order attached to Defendant

Thompson's motion, Plaintiff noticed that it was stamped on August 15

after 4 pm, which was well after the actions by Defendant Thompson

removing clients from his facility. (case 3:13-cv-00569 doe 29-1 pagedid #

184)

This was the first time Plaintiff saw the summary suspension order. Upon

investigation Plaintiff discovered that, after the August 15, 2007 raid,

when he received a receipt of documents from the Department of Health,

it did not list any order of summary suspension but instead listed the

following: 1) Correspondence from Susan R. Cooper, Commissioner dated

August 13, 2007 with attached Notice of Rights 2) Notice of Suspension

of Admissions dated August 13, 2007 3) Correspondence from Susan R.

Cooper, Commissioner dated August 13, 2007 4) Statement of Deficiencies

and Plan of Corrections dated August 13, 2007 consisting of twenty-three

(23) pages and 5) Notice of Rights. (case 16-6335 doc 24-1 page 9, 38

Plaintiff Reply Brief Exhibit 2)

None of the documents that Plaintiff received after the raid on August 15,

2007 authorized the removal of patients. The August 13, 2007 correspondence from Susan R. Cooper only suspended new admissions but it was

not a summary suspension of Plaintiff's license. Id

Plaintiff, now having information that Defendants were claiming to have

acted off of an order and not a warrant, investigated old newspaper articles

and confirmed in the Hartsville Vidette that Sheriff Ray Russell had indeed

claimed that he and Defendant Thompson had acted off of a warrant as

opposed to an order. (case 16-6335 doc 24-1 pages 11-12 Plaintiff's Reply

Brief)(Case 3:15-cv-01310 Document 26-7 pageid # 181-182 Motion for

Review of Magistrate Order Exhibit 3)

Defendants made use of the following devices to mislead Plaintiff in order

to exclude suspicion and/or prevent inquiry:

1. Not answering Plaintiff's inquires about the warrant until 2013.

Claiming in court that a warrant doesn't matter.

Having the Attorney General of the State of Tennessee stating in a court

motion that fraudulent concealment of a warrant doesn't matter.

Having a meeting after the raid where there was no warrant in order to

issue a summary suspension order to cover up the fact that there was no

warrant.

Not giving Plaintiff a copy of the supposed summary suspension order as

a part of the documents the Department of Health gave Plaintiff after the

closure of his facility.

In the case State v. Coffee, Tommy Thompson was forced to stipulate to

the fact that a warrant in a drug case was missing. State v. Coffee, 54 SW

3d 231, 232 (Tenn. 2001) The Tennessee Supreme Court in that case stated the

following:

The provision at issue, that a magistrate prepare and retain a

copy of the search warrant, endeavors to prevent improper searches

and facilitate judicial review of whether a search was executed within

the scope of the warrant. The rule achieves its goals in that a written

record of the specifics of the search stifles the ever-present temptation

for an officer to conduct a search and justify it later. [21 Additionally,

the copy of the warrant enables review of the original boundaries of a

search; without an exact copy of the warrant, review is compromised

because the critical facts and details of the warrant cannot be precisely detennined.[31 It is for these reasons that it is important to

retain an exact copy of the warrant identifying the property or person

to be searched, and it is for these same reasons that this requirement

has been strictly enforced by our courts for many years

Id. 233-234

This case raises similar concerns. It is Plaintiff's contention that the

"emergency meeting" that occurred after the raid by Defendants Thompson, Ray

Russell and others which issued the summary suspension was done to justify

Defendants' unlawful acts.

IV The Sixth Circuit contradicted itself, findings by the district court

and its own precedent and Supreme Court precedent in its continuing

violation analysis to the extent that it would make of null effect

any future Plaintiff's use of the continuing violation doctrine.

The elements of continuing violation are 1) the defendant engages in continuing

wrongful conduct 2) injury to the plaintiff accrues continuously; and 3) had the

defendant at any time ceased its wrongful conduct, further injury would have

been avoided. Goldsmith v. Sharrett, Court of Appeals (6th Circuit 2015) Hensley

v. City of Columbus, 557 F. 3d 693 Court of Appeals, 697 (6th Circuit 2009). The

Supreme Court has held that "discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely filed charges."

National Railroad Passenger Corporation v. Morgan, 536 US 101, 113 (Supreme

Court 2002) In that case the Supreme Court distinguished from discrete events

like retaliation and discrimination which "occurred on the day that it happened"

Id. at 110, and continuous causes of action like hostile work environment which

by "their very nature involves repeated conduct." Id. at 115. For a continuous

"it does not matter whether nothing occurred within the intervening... days so

long as each act is part of the whole." Id. at 118.

A continuing violation depends on "continual illegal acts" and not mere

"not continual ill effects from an original violation" Tolbert, 172 F'.3d at 940. In

Tolbert the Sixth Circuit analyzed causes of action from two events. The first was

the Ohio Department of Transportation's decision in 1984 to fail to recommend

sound-mitigation measures in 1984 for a proposed highway expansion. Id The

second was a decision in 1996 to recommend sound-mitigation measures along

the highway where there were predominately white neighborhoods, but not

to recommend sound mitigation equipment where there were predominately

black neighborhoods. Id. at 939 Ultimately it used the following three part

test to determine if there was a continuing violation from the 1984 claim: 1)

the defendant's unlawful conduct must continue after the initial event that

began the pattern 2) the injury to the plaintiff must accrue after the event

and 3) further injury must have been avoidable if the defendants had at any

time ceased their wrongful conduct. Id. at 940 Kuhnle Brothers, Inc. v. County

of Geauga, 103 F. 3d 516, 522 (6th Cit 1997). Ultimately the Sixth Circuit

determined that the cause of action from 1984 accrued when the approval of

the plan was made, but that the later decision to grant sound barriers to white

neighborhoods but not black neighborhoods was a discrete event that did not

accrue until 1996. Tolbert, 172 F.3d at 940 The Sixth Circuit in Tolbert reversed

and remanded the district court's dismissal of the case because there was a

cause of action for the alleged discriminatory allocation of sound barriers in 1996

which was within the statute of limitations and the Sixth Circuit determined

that it was improper to dismiss that cause of action under a Rule 12 motion to

dismiss as the merits had not been properly looked at. Id. 941,942

The Sixth Circuit also did a two part test to see if there as a continuing violation from 1984 and decided that since there was 1) no allegation of

wrongdoing after 1984 in relation to the sound-barrier approval and 2) no alle23

gation of concealment after 1984 with regards to the approval, anything that

happened specifically related to the sound-barrier approval was an "ill-effect"

and not an 'illegal act." Id. at 940. The court referenced another § 1983 case,

Palmer v Board of Education, where the Seventh Circuit that "[ilf, as plaintiffs

believe, the school board's explanation for closing Deer Creek is a pretext for

discrimination, then each year's decision to leave the building shuttered is a

new violation." Id. at 941 quoting Palmer u. Bd. of .Educ. Comm. Unit School

Dist., 46 F. 3d 682, 686 (7th Cir. 1995). The Seventh Circuit in Palmer made

the analogy of when there isn't a continuing violation as being "Like punching

someone in the nose, this act may lead to injury in the future, but when there is

only one wrongful act the claim accrues with the first injury" Id. The Seventh

Circuit further stated that "A series of wrongful acts, however, creates a series

of claims." Id.

In the present case the District Court had this to say about Plaintiff's

claims of post 2007 wrongful acts.

Plaintiff's assertion that the property address changes were not

discovered by him until September 19, 2012 and "the end of 2013"

(id. at 15) convenient dates because they fall within the limitation

period point to discrete events, as do his other claims, such as that

Defendants committed fraud on the court and unlawfully placed him

on the Tennessee Abuse Registry. Thus, he cannot, as he argues,

avail himself of the continuing violations doctrine to save what is his

real claim, i.e. that Defendants took action to close Sun Valley Home

for the Aged, which then led to the loss of money and property.

(App. 20,21)

The district court made the same mistake that the district court made in

Tolbert, namely attempting to state Plaintiff's gravamen for him and not allowing causes of action to go forward that were within the statute of limitations.

The Tolbert court asserted that because the later cause of action was a discrete

event it accrued later. Tolbert, 172 F.3d at 940

In contrast the Sixth Circuit Court had this to say about the same alleged

events.

Mitchell alleged the following "continuing violations": In 2011,

Citizen's Bank, the defendants, and an officer of the court committed

fraud on the district court by stating that Mitchell did not live on

his property; in 2011, Susan Cooper illegally placed Mitchell on

the Tennessee Abuse Registry; in 2011, the address on the deed to

Mitchell's property was illegally changed; in 2012, Mitchell found out

that Holder was on the zoning board that rezoned his property in

someone else's name; in 2012, Mitchell tried unsuccessfully to ifie a

warrant to get Michael Townsend off his property; in 2013, Mitchell

received new evidence that Citizen's Bank failed to secure proper

liens; in 2013, Mitchell received notice that no warrant supported

the defendants' August 15, 2007, action; and from 2013 to 2015,

his property's address was changed. At most, these alleged actions

constitute "continual ill effects from" the 2007 closure of Sun Valley.

Id. (quoting Tolbert, 172 F.3d at 940).

(App. 30)

There is a clear contradiction as events cannot both be "discrete events"

and "ill effects." According to the National Railroad case the district court relied

on for its "discrete event" analysis, a discrete event is one that "occurred on the

day that it happened." Morgan, 536 US at 110. But an ill effect is something

that is based on "an original violation." Tolbert, 172 F.3d at 940. Further the

Sixth Circuit's analysis of this case fails because it turns a blind eye to the fact

that the Plaintiff alleged new unlawful acts. This is a breakdown of everything

the Sixth Circuit Court arbitrarily called an ill effect when Plaintiff had actually

alleged a new wrongful act.

"In 2011, Citizen's Bank, the defendants, and an officer of the court committed fraud on the district court by stating that Mitchell did not live on

his property."

That constitutes the crime of perjury. This is important because Citizens

Bank attorney needed to commit fraud to get out from under the Truth In

Lending Act (TILA). The Judge in the case said he saw "colorable claims"

in the TILA, but that would not apply if Plaintiff had not lived on the

property when the loans in question were made.

"in 2011, Susan Cooper illegally placed Mitchell on the Tennessee Abuse

Registry"

This was a violation of Plaintiff's due process of law. Plaintiff had timely

filed an appeal in 2009 and Tennessee law required that he be given

opportunity to file a brief. Instead of doing that, Susan Cooper waited two

years, when she was supposed to act within 60 days, and placed Plaintiff

on the abuse registry and claimed to have "reviewed Plaintiff's appeal."

Plaintiff appealed again in 2011 within 30 days which triggered his right

under Tennessee Law for another hearing. To this date that hearing has

not happened. This goes back to the warning from the Tennessee Supreme

Court in State u Coffee that the requirement for maintaining a copy of a

search warrant was needed to stifle "the ever-present temptation for an

officer to conduct a search and justify it later." Coffee, 54 SW 3d at 252-253.

The 2009 abuse registry hearing used testimony entered as hearsay from

the 2007 license suspension hearing. Had Plaintiff been able show on

appeal that he did not deserve to be placed on the abuse registry it would

have brought into question actions by some of the Defendants in moving

to close Plaintiff's bsuiness.

"in 2011, the address on the deed to Mitchell's property was illegally

changed;

It is illegal under Tennessee law to knowing file a fraudulent deed.

"in 2012, Mitchell found out that Holder was on the zoning board that

rezoned his property in someone else's name;"

This shows that Mary Holder had knowledge of the fraud.

"in 2012, Mitchell tried unsuccessfully to file a warrant to get Michael

Townsend off his property;"

This was obstruction of justice and a violation of Plaintiff's constitutional

right to access to the courts under the holding in Swekel case. Swekel, 119

F. 3d at 1262

in 2013, Mitchell received new evidence that Citizen's Bank failed to secure

proper liens;

This is part of Plaintiff's claim against Wilson Taylor, which even the

district court and the Sixth Circuit Court states that Plaintiff still has but

as a 'state law" cause of action. By calling this an "ill effect" the Sixth

Circuit Court contradicted even itself.

"in 2013, Mitchell received notice that no warrant supported the defendants' August 15, 2007, action;

This goes to fraudulent concealment by the Defendants and continued

fraud on the court.

"and from 2013 to 2015, his property's address was changed."

Again, it is illegal under Tennessee law to knowing file a fraudulent deed.

The only way to harmonize the district court's holding that there were "discrete events" and the Sixth Circuit's indirect holding that everything went back

to one "original act" is to say that these unlawful acts constitute a continuous

violation.

V The Sixth Circuit holding that Plaintiff does not have a four year

statute of limitations under Jones v. R.R. Donnelley &Sons Co. contradicts

holdings by the U.S. Supreme Court and most other U.S. circuit

courts.

The Tennessee Court of Appeals in Memphis looked at a civil rights case filed

in state court to see what statute of limitations applied. Marcus Belton v. City

of Memphis, No. CT00390714 (Tenn. COA Memphis 2016). In its analysis it

stated:

The crux of this appeal concerns whether the four-year federal

statute of limitations contained in Section 1658 applies to this case.

There is no dispute that the alleged discriminatory conduct in this

case occurred in 2012, nearly two years before Appellant filed his

complaint. Consequently, if the complaint alleges facts sufficient

for the application of the four-year statute of limitations under 28

U.S.C. § 1658, dismissal was inappropriate. In contrast, if Appellees

are correct that the one-year statute of limitations under Tennessee

Code Annotated Section 28-3-104 is applicable, then the trial court

correctly dismissed Appellant's claims.

It further stated:

We are likewise persuaded by the near unanimity among the federal courts on this issue. Because Appellant's complaint sufficiently

alleged post-contract formation conduct, we conclude that for purposes of Appellees' motions to dismiss, we must apply the Section

1658 federal catchall statute of limitations to Appellant's claims despite the fact that Appellant raises his Section 1981 claims through

the vehicle of Section 1983.'

The Tennessee Court of Appeals arrived at this conclusion from the following analysis:

The United States Supreme Court explained the scope of the 28

U.S.C. § 1658 statute of limitations in Jones u. R.R. Donnelley &

Sons Co., 541 U.S. 369 (2004). In Jones, current and former AfricanAmerican employees sued their employer for race discrimination

under 28 U.S.C. § 1981. The employer filed a motion for summary

judgment on the ground that the applicable statute of limitations

had expired. Jones, 541 U.S. at 371.

The Supreme Court first noted that it had previously held that

because Section 1981 contained no statute of limitations, "courts

should apply 'the most appropriate or analogous state statute of

limitations' to claims based on asserted violations of § 1981.11 Id. at

371 (quoting Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107

S.Ct. 2617, 96 L.Ed.2d 572 (1987)). In this case, there is no dispute

that the "most appropriate" Tennessee statute of limitations for this

action is found at Tennessee Code Annotated Section 28-3-104, which

provides that civil actions under the federal civil rights statutes are

subject to a one-year limitations period.

In response, Congress enacted 28 U.S.C. § 1658, which provided

in part: "Except as otherwise provided by law, a civil action arising

under an Act of Congress enacted after the date of the enactment

of this section may not be commenced later than 4 years after the

cause of action accrues.' Id. § 1658(a). Thus, the Supreme Court

held that this four-year "catchall" statute of limitations applied to

"actions arising under federal statutes enacted after December 1,

1990." Jones, 541 U.S. at 382. Causes of action that arise tinder

federal statutes enacted before December 1, 1990, however, remained

governed "by the personal injury statute of limitations of the forum

State." Id. at 371.

Patterson v. McLean Credit Union, 491 US 164, 176-77, 109 (1989)

109 S. Ct. 2363, 2372, 105 L. Ed. 2d 132 (U.S. 1989) (superseded

by statute as discussed infra). Thus, the pre-December 1, 1990

version of Section 1981 provided protection for claims involving "the

refusal to enter into a contract with someone on the basis of race

and protection against racial discrimination that infects the legal

process in ways that prevent one from enforcing contractual rights."

Mitchell a Crescent River Port Pilots Assn, 265 Fed. Appx. 363, 368

(5th Cir. 2008) (citing Patterson, 491 US at 176-77). Claims involving

the failure to enter into a new contract, therefore, do

the four-year catchall federal statute of limitations,

not fall within

and instead are

governed by the applicable statute of limitations of

the forum. In

1991, however, Congress enacted the Civil Rights Act

of 1991, "with

the design to supersede Patterson" by "explicitly

defin[ing] the scope

of § 1981 to include post-contract-formation conduct[.

]" CBOCS WI,

Inc. v. Humphries, 553 U.S. 442,450-51,

128 S. Ct. 1951,1957-58,170 L. Ed. 2d 864 (2008) (citin

g 42 U.S.C.

§ 1981(b)). The current version of Section 1981 spec

ifically defines

the "make and enforce contracts" language in the statu

te to include

post-formation modification and termination:

(b) 'Make and enforce contracts" defin

For purposes of this section, the term "make and enfo

rce contracts"

includes the making, performance, modification, and

termination of

contracts, and the enjoyment of all benefits, privileges

conditions of the contractual relationship. 42 U.S.C.

, terms, and

§ 1981.

Because a cause of action for post-contract formation

arose only from a post-December 1, 1990 amendment

conduct

to Section 1981,

claims involving this cause of action fall within the fouryear

catchall statute of limitations. Jones, 541 U.S. at 384.

federal

In order to

determine which statute of limitations is applicable

in this case, we

must therefore determine whether Appellant's claim

s involve allegations of pre-contract formation or post-contract form

ation conduct.

Belton, No. CT00390714

The district court and the Sixth Circuit both claimed

state law for the statute of limitations in this case. But

to look to Tennessee

Tennessee Courts apply

conduct such as

a four year statute of limitations for post-contract formation

in her "Report and

modification or termination of contracts. The Magistrate

that these actions

Recommendation" specifically stated that Plaintiff contends

13 residents at Sun

caused him to lose the "tenant contracts" he had with the

r contracts. (App.

Valley and also caused the cancellation or termination of vendo

ed to clear holdings

3). Based on factual findings by the district court appli

als and most federal

by the U.S. Supreme Court, the Tennessee Court of Appe

been applied to

circuit courts, a four year statute of limitations should have

Plaintiffs claims.

Conclusion

ld be granted so that

For the above reasons, the petition for writ of certiori shou

the shown conflicts of law can be resolved.

Respectfully Submitted,

Dwight Mitchell

August 30, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.