Opposition Brief — Estate of Willis v. Estate of Riley

(3)

VAY

No. !'8-1085

In The

Supreme Court of the United States

October Term, 1988

,

7.

ESTATE OF ANDERSON WILLIS, ET AL.,

Petitioners,

V.

ESTATE OF JOHN RILEY, ET AL.,

Respondents.

e

On Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Fifth Circuit

a

:

BRIEF IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

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vv

HERBERT S. Bristow

United Bank Plaza, Suite 300

510 North Valley Mills Drive

Waco, Texas 76710

(817) 776-3336

Attorney for Respondents

LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

Hy

i

TABLE OF CONTENTS

Page

LIST OF AUTHORITIES ..............ssccecseeoeee ii

CPP RR eEe WOPEEUS SOUND 6 ioe es ceccecessscrcenss 2

STATEMENT OF FACTS AND HISTORY OF THE

FRA er hee Tee res Tere Teer Tree eee ee 2

RESTATEMENT AND OPPOSITION POINT ONE

A. Dismissal Under Federal Rule of Civil Procedure

12(b)(6) was Proper Because the Claim was Barred

by the Applicable Statute of Limitations........ 5

B. Dismissal of the Case Under Rule 12(b)(6) was

Proper Because the Claim Failed to State a Cause of

Action Against Any of the Defendants.......... 15

C. Based Upon the Foregoing, the Decision of the

Fifth Circuit in this Case Does Not Warrant

Review by This Court Through the Plaintiffs’ Peti-

Re Fr Peter OF CIR ooo osc cecnccccess 16

eT 5-6 orn esd kudha cenekeaesiaedviwsetaass 17

ii

INDEX OF AUTHORITIES

Page

Cases

Board of Regents v. Tomanio, 446 U.S. 478, 64 L. Ed.

Be TD CEPOOs oo vkcnccnscscndcenctdeaseenan an 6, 10

Borderlon v. Peck, 661 S.W.2d 907 (Tex. 1983)......... 11

Cross v. Lucius, 713 F.2d 153 (5th Cir. 1983)

Sy EL ae MP Ee I CF ery eS 10, 12, 13, 16

Hohri v. United States, 586 F. Supp. 769 (D.D.C.

| reer er rrr rr rere fa eC ie 14, 15

Hohri v. United States, 847 F.2d 779 (Fed. Cir. 1988) ....15

Lavellee v. Listi, 611 F2d 1129, 52 A.L.R.Fed. 773

ASth Cir, 1000)... cence csccccessenusswasqensssenis 8

Leeds v. Cooley, 702 S.W.2d 213 (Tex. App.--

Houston [1st Dist.] 1985, no writ)................. 10

Longoria v. City of Bay City, 779 F.2d 1136 (5th Cir.

PONE - ks. ccs 090004460 550098 eee eee 7, 8

Monell v. Department of Social Services, 436 U.S.

GOB, Sh LBB G11 CIGFE) 0 on ccccnasenwnxesecsss 16

Peter Henderson Oil Co. v. City of Port Arthur, 806

P20 4273 Dik Cir. 0G) «oon nook vcs vsncebeusucsanss 7

Thompson v. Barnard, 142 S.W.2d 238 (Tex. Civ.

App. 1940), aff’d, 138 Tex. 277, 158 S.W.2d 486

(Tex. Comm’n App. 1942, opinion adpt’d)......... 10

United States v. Hohri, 482 U.S. 64,96 L.Ed.2d51 ~.

| rr ere Oe Te 13, 14, 15

United States v. Kubrick, 444 U.S. 111, 62 L.Ed.2d

BP COUPER 6 voc ekéenacsedaaeeennveee ee 14

ee

ili

INDEX OF AUTHORITIES—Continued

Page

Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254

a ed eae skeegeese'a 6, 7, 10

STATUTES

RS i ES a 2, 16

Texas Civil Practice & Remedies Code § 16.003

ee ee Cea anek bas eeae ee 7, 8

RULES

Federal Rule of Civil Procedure 12(b)............. y

Federal Rule of Civil Procedure 56................. 5

No. 88-1085

ys

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In The

Supreme Court of the United States

October Term, 1988

y%

4

ESTATE OF ANDERSON WILLIS, ET AL.,

Petitioners,

V.

ESTATE OF JOHN RILEY, ET AL.,

Respondents.

Ly

vv

On Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Fifth Circuit

yo

4

BRIEF IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

4.

4

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

Freestone County, the Freestone County Sheriff’s

Department, Patsy Stroud and Judge Joe Roger Alder-

man, Defendants/Appellees in the courts below,

respectfully submit this Brief in Opposition to the Peti-

tion for Writ of Certiorari, and show the Court the

following:

OPPOSITION POINT ONE

The petition for Writ of Certiorari should not be

granted since the federal court of appeals decision does

not raise the type of issues necessary for review by this

Court.

A

.

FACT STATEMENT

On March 2, 1987, the Plaintiffs (Petitioners herein)

amended their complaint to add as defendants Freestone

County, Judge Joe Roger Alderman, Patsy Stroud (in her

official capacity as Tax Assessor for Freestone County),

the Freestone County Sheriff’s Department, (all collec-

tively known as the “Freestone County Defendants”) and

various private landowners of a certain tract of land in

Freestone County, Texas. Plaintiffs alleged that their

ancestor, Anderson Willis, purchased the particular tract

of land back in 1868. The suit was brought under the

Civil Rights Act, 42 U.S.C. Sections 1981-1988, and the

United States Constitution.

The Defendants filed Motions to Dismiss under Rule

12(b) of the Federal Rules of Civil Procedure, pleading

the affirmative defense of limitations and claiming enti-

tlement to dismissal for the plaintiffs’ failure to properly

allege a cause of action against the particular Defendants.

On August 7, 1987, the district court entered its order

dismissing the case for three reasons: 1) the complaint

itself affirmatively showed that the claim was barred by

limitations under Texas state law; 2) the complaint failed

to state a cause against any of the defendants; and 3) the

ere

complaint failed to allege any specific acts of wrongdoing

against any of the defendants.

The case was appealed to the Fifth Circuit. On

August 25, 1988, in a per curiam decision, the court

affirmed the lower court opinion, finding that the case

failed to present sufficient facts to justify a tolling of the

statute of limitations. The Petition for Rehearing was

denied on September 28, 1988.

Plaintiffs’ complaint centered around certain allega-

tions of wrongdoing which occuried more than one hun-

dred years ago. The plaintiffs’ ancestor, Anderson Willis,

purchased a tract of real property located in Freestone

County, Texas. Plaintiffs complain that following Willis’

acquisition of the land, various unidentified persons com-

mitted fraudulent acts which deprived Mr. Willis and his

family of portions of the land tract. The acts alleged

include:

a) the forgery of certain promissory notes with Mr.

Willis as maker; these notes were reduced to

judgment sometime later and portions of Mr.

Willis’ real property were foreclosed upon by

sheriff’s deed in satisfaction of the judgment.

b) the forgery of a will purporting to be executed by

Anderson Willis devising only a portion of the

land owned by Anderson Willis to his offspring;

c) the entry of a judgment in a lawsuit concerning a

county boundary dispute between Anderson

County and Freestone County that allegedly

infringed upon the property owned by Anderson

Willis;

4

d) removal of Anderson Willis’ name from the tax

rolls in Freestone County thereby omitting recor-

dation of his name as owner of the real property

in question;

e) the entry of a judgment in a lawsuit concerning

the boundary limitations of the so-called “Jose

Ygnacio Aguilera” Mexican grant that allegedly

infringed upon the property owned by Anderson

Willis;

f) invasion and trespass of the family cemetery plot

by certain unknown and unnamed individuals.

The foregoing allegations are the most specific acts of

wrongdoing set out in the complaint. Plaintiffs never

identified any of the particular persons that participated

in these wrongful acts. Included in the complaint were

several pages of general historical allegations of wrong-

doing, prejudice and injustice allegedly committed

against Blacks residing in Freestone County, Texas; how-

ever, there were no allegations that the many individual

Plaintiffs themselves actually suffered any of the alleged

wrongs at the hands of any of the named Defendants. The

Plaintiffs identified the Ku Klux Klan or a similar group

of persons as the main instrumentality in the “system-

atic” deprivation of their property. The Freestone County

Sheriff's Department and the Tax and Deed Records

Department of the County were alleged to have “partici-

pated directly in this lawlessness,” but there was no

identification of the individual wrongdoers within the

governmental entities.

In general, Plaintiffs asserted that they were unable

to bring this lawsuit until the year 1984, although the

specific alleged wrongs primarily occurred prior to the

turn of the century. In their complaint, Plaintiffs admit

Seite |

a F

that while Black American citizens generally encountered

difficulty in seeking redress through the judicial system,

these barriers were substantially overcome during the

Civil Rights reform era led by Dr. Martin Luther King in

the 1960’s.

sa.

4

RESTATEMENT OF OPPOSITION POINT ONE

The petition for Writ of Certiorari should not be

granted since the federal court of appeals decision does

not raise the type of issues necessary for review by this

Court.

4.

ad

ARGUMENT AND AUTHORITIES UNDER

OPPOSITION POINT ONE

A. Dismissal Under Federal Rule of Civil Procedure

12(b)(6) was Proper Because the Claim was Barred

by the Applicable Statute of Limitations.

The district court dismissed the case under Federal

Rule of Civil Procedure 12(b)(6). Under Rule 12(b), a

court may determine whether a claim is barred by the

applicable statute of limitations unless, under Rule 56,

the motion must be converted into one for summary

judgment in order for the court to hear evidence outside

of the pleadings. Throughout their appeal of this case,

Plaintiffs’ consistently misconstrue the trial court’s deci-

sion by arguing that summary judgment was entered and

that the court improperly weighed the evidence and

judged the credibility of the testimony. In fact, no evi-

dence was presented to the court; the opinion clearly

states that the court considered only the pleadings of the

parties and examined the complaint to determine the

sufficiency of the allegations. Dismissal occurred because

the court found no set of facts, as pleaded in the com-

plaint or explained in the subsequent pleadings, which

would entitle the plaintiffs to relief.

1. The Applicable State Statute of Limitations Con-

trols this Case

Each of the lower courts below followed the pro-

cedure set forth by this Court in Wilson v. Garcia for

determining the applicable limitations period for actions

brought under the Civil Rights Act. 471 U.S. 261, 85

L.Ed.2d 254. Since the Act itself contains no limitations

provisions, federal courts must look to the analogous

state statute to determine if the claim is time-barred. The

appropriate state law provision controls unless it is

“inconsistent with the federal policy underlying the

cause of action under consideration.” Board of Regents v.

Tomanio, 446 U.S. 478, 64 L.Ed.2d 440 (1980). Additionally,

state law governs issues of tolling and application of the

limitations period. Wilson, 471 U.S. at 268-69.

This Court examined the history and legislative

intent surrounding the Civil Rights Act of 1871:

The specific historical catalyst for the Civil Rights

Act of 1871 was the campaign of violence and decep-

tion in the South, formulated by the Ku Klux Klan,

which was denying decent citizens their civil and

political rights.

Wilson, 471 U.S. at 276, 85 L. Ed. 2d at 267. No one would

deny the historical pattern of discrimination against

Black citizens in our country at one time, but for over one

hundred years citizens of every race and gender have had

a congressionally created judicial redress for acts which

operate to violate those citizens’ civil rights, whether the

perpetrators are private individuals or government actors

acting under color of law. Because a violation of the Act is

an injury to the individual rights of the victim, Section

1983 claims are characterized as tort claims for personal

injuries. Id., 471 U.S. at 279, 85 L. Ed. 2d at 268-69. The

personal injury characterization is consistent with the

underlying federal policies behind the Civil Rights Act.

Id.

Section 16.003 of the Texas Civil Practice and

Remedies Code sets forth the limitations period applica-

ble to tort claims for personal injuries. The statute

provides:

(a) A person must bring suit for trespass for injury

to the estate or to the property of another, con-

version of personal property, taking or detaining

the personal property of another, personal

injury, forcible entry and detainer, and forcible

detainer not later than two years after the day

the cause of action accrues.

Tex. Civ. Prac. Rem. Code Section 16.003 (Vernon 1988).

This statute governs the limitations period for claims

under 42 U.S.C. Section 1983. Peter Henderson Oil Co. v.

City of Port Arthur, 806 F.2d 1273 (5th Cir. 1987); Longoria

v. City of Bay City, 779 F.2d 1136 (5th Cir. 1986) (citing to

old Texas Revised Civil Statute article 5526(1) which is

now recodified as Section 16.003 of the Texas Civil Prac-

tice and Remedies Code). Accordingly, both the trial

court and the Fifth Circuit found that Plaintiffs’ suit was

governed by the two year limitations period set out in

Section 16.003 of the Code.

2. Federal Law Determines Accrual of the Cause of

Action

While state law governs the length of the limitations

period, federal law determines the point in time in which

the cause of action accrues. Longoria, 779 F.2d at 1138. The

federal standard holds that a cause of action accrues

when the plaintiff knows or has reason to know of the

injury which is the basis of the action. Id. citing Lavellee v.

Listi, 611 F.2d 1129, 52 A.L.R.Fed. 773 (Sth Cir. 1980).

Essentially, “the limitations period begins to run when

the plaintiff either is or should be aware of both the

injury and its connection with the alleged acts of the

defendant.” Longoria, 779 F.2d at 1138.

The district court examined the facts as pleaded and

found that the plaintiffs (or their ancestors) either knew

or had reason to know of the alleged fraudulent land

schemes by at least the year 1904 and, in all likelihood,

were on notice of the problems as early as the year 1870.

Even assuming that the allegations of wrongdoing are

true, the complaint itself reveals several identifiable

points in time in which Anderson Willis or his immediate

family knew or should have known of problems with

their land titles and likewise knew or should have known

of attempts by other persons to defraud Willis of his

property. For example, Plaintiffs allege that certain

unknown persons “created fraudulent promissory notes

wherein Anderson Willis was the note holder and his

children were the debtors.” According to the complaint,

these notes were negotiated and eventually reduced to

judgment liens on the Willis property. Apparently the

foreclosures occurred in 1904 and Plaintiffs admitted that

knowledge of the wrong was acquired when the fore-

closure was accomplished. Additionally, Plaintiffs allege

that Anderson Willis’ name was forged on a will purport-

ing to devise only 100 acres of his property to his son,

Alec. This wrong was certainly known to the family at the

time of Anderson Willis’ death. Plaintiffs also allege that

certain fraudulent actions resulted in Anderson Willis’

name not appearing on the tax rolls until 1881, even

though the property was purchased in 1869. Clearly, this

particular injury was known by the family no later than

the year 1881. Without exception, all of the alleged acts

were discovered or should have been discovered decades,

if not a century, ago. On these bases, the trial court and

the Fifth Circuit concluded that absent some tolling

exception, the plaintiffs “should have filed this suit

approximately one hundred years ago.”

3. State Law Exceptions to Toll the Limitations Period

The courts below found that the plaintiffs presented

no facts which would operate to toll the running of

limitations nearly one hundred years until the date suit

was filed. Plaintiffs argue that they were precluded from

bringing suit within the proper period by the acts of

various unknown persons who fraudulently concealed

the cause of action from the plaintiffs and effectively

barred the plaintiffs’ access to the court to seek redress

for the injuries, once the existence of the claim was

known. These allegations fall short of establishing the

10

essential elements for fraudulent concealment in this

case.

As noted above, federal courts examine state law

regarding tolling exceptions to the applicable limitations

statute. Wilson, 471 U.S. at 269; Tomanio, 446 U.S. at 487.

State tolling provisions are not inconsistent with the poli-

cies of Section 1983 claims. Tomanio, 446 U.S. at 488; Cross

v. Lucius, 713 F.2d 153, 158 (5th Cir. 1983).

Under Texas law, in the absence of fraud, a plaintiff’s

ignorance or inability to learn that a cause of action exists

will not prevent the limitations period from running. An

exception exists when there has been a relationship of

trust and confidence between the parties and the party

committing the wrongful act actively undertakes to con-

ceal the wrong. Thompson v. Barnard, 142 S.W.2d 238, 241

(Tex. Civ. App. 1940), aff'd, 138 Tex. 277, 158 S.W.2d 486

(Tex. Comm’n App. 1942, opinion adpt’d). Fraudulent

concealment by the defendant causes the starting point

for limitations to shift from the date of the injury to the

time the cause of action is discovered or should have

been discovered in the exercise of reasonable diligence.

Leeds v. Cooley, 702 S.W.2d 213 (Tex. App. —- Houston [1st

Dist.] 1985, no writ); Borderlon v. Peck, 661 S.W.2d 907

(Tex. 1983). In order for the doctrine to apply, the defen-

dant himself must have actual knowledge that the wrong

occurred and there must be fixed purpose to conceal the

wrong. Leeds, 702 S.W.2d at 215. Implicit within the doc-

trine is the idea that the defendant both committed the

wrongful act and that he actively and purposefully con-

cealed the wrong. The estoppel effect of the doctrine

11

ceases “when a party learns of facts, conditions or cir-

cumstances which would cause a reasonably prudent per-

son to make inquiry that, if pursued, would lead to

discovery of the concealed cause of action.” Borderlon, 661

S.W.2d at 907.

None of the essential elements for fraudulent con-

cealment exist in this case. Plaintiffs never identified any

kind of “special relationship of confidence and reliance”

existing between them and any of the defendants that

would give rise to a duty to disclose. More importantly,

there were no allegations that the particular defendants

to this suit participated in an injury to the plaintiffs or

that any defendant had actual knowledge of a wrong

committed which was actively concealed. Plaintiffs never

identified a single instance where any named defendant

sought to conceal information from the plaintiffs. Finally,

the plaintiffs admitted in their complaint that they knew

of their injury at some point in time subsequent to the

alleged events; that knowledge, as the trial court noted,

was gained some one hundred years ago.

Apparently in addition to the argument of fraudulent

concealment, Plaintiffs urge that some type of equitable

tolling of the statute should be applied in this case.

Plaintiffs point to the historical facts of the social system

facing Blacks in this country after the Civil War, but they

never particularized their complaints as to themselves

and their ancestors. Allegations of generalized historical

trends cannot operate to allow these particular individ-

uals the right to an equitable tolling of the statute. More-

over, Plaintiffs themselves conceded in their pleadings

that during the Civil Rights Era of the 1960’s, Black

12

Americans in general became cognizant of their rights to

examine public records and seek the protection of their

civil rights through the judicial system. Thus, the district

court and the Fifth Circuit concurred that any equitable

tolling of the statute, even if this case merited such a

tolling, ended sometime during the Civil Rights Era.

Plaintiffs never advanced any explanation in their

pleadings as to why the limitations period should be

tolled until June 19, 1982, the date two years prior to the

filing of their lawsuit. The trial court and the Fifth Circuit

concluded that no set of facts could exist which would

toll the running of the statute until the year 1982.

4. The Fifth Circuit Case of Cross v. Lucius

Both the trial court and the Fifth Circuit noted that

the plaintiff’s case was closely analogous to the previous

Fifth Circuit opinion in Cross v. Lucius, 713 F.2d 153 (5th

Cir. 1983). In Cross, the plaintiffs complained of events

that occurred in the 1920’s, allegedly depriving the plain-

tiffs’ family member of real property located in the state

of Louisiana. The Fifth Circuit reviewed the dismissal on

the basis of the limitations defense raised by the defen-

dants. After examining the appropriate Louisiana state

limitations provisions, the analysis turned to the plain-

tiffs’ argument that the limitations period should be

tolled because existing prejudice and racism kept them

from obtaining the financial backing and legal represen-

tation needed to bring the suit. 713 F.2d at 157. The court

analyzed the Louisiana estoppel doctrine (analogous in

effect to the Texas fraudulent concealment doctrine), and

noted:

13

Even if the plaintiffs’ allegations that they could not

have obtained legal representation during the earlier

part of this century because no lawyer would repre-

sent a black person in a suit against a white person

are true, the plaintiffs conceded at oral argument that

this situation had improved by the 1960s, perhaps as

a result of the upsurge in civil rights litigation during

that period. The plaintiffs still delayed twenty years

from that time until they brought this action.

713 F.2d at 158.

Plaintiffs have tried throughout the course of litiga-

tion to distinguish their situation from that of the plain-

tiffs in Cross; however, as in the prior case, the Willis

descendants in fact: a) failed to adequately allege that

any defendant prevented the plaintiffs from pursuing

their claim or kept them in ignorance of their cause of

action; b) failed to show that any legal barrier kept them

from bringing this action earlier than June 19, 1984; and

c) failed to show that plaintiffs exercised diligence in

trying to pursue the claims in the court system. 713 F.2d

at 158. No effort was ever made to articulate any explana-

tion for the fact that Plaintiffs waited until the year 1984

until attempting to bring this suit. As the Fifth Circuit

noted, in the absence of specific factual allegations

related directly to the Willis family and their particular

situation regarding access to the courts, Plaintiffs failed

to present a set of facts that would justify tolling the

statute of limitations for nearly one hundred years until

the date suit was finally filed.

5. Hohri v. United States

Plaintiffs assert in their Petition to this Court that the

lower courts’ decisions are in opposition to this Court's

14

position in United States v. Hohri, 482 U.S. 64, 96 L.Ed.2d

51 (1987). The opinion of this Court in Hohri reflects that

judgment was entered concerning the issue of jurisdiction

only and the Court did not address the merits of the

decision of the Court of Appeals (including the limita-

tions issue). Plaintiffs attempt to read into the opinion

tacit approval by this Court that the claims addressed in

Hohri were not barred by limitations due to an equitable

tolling argument.

The subsequent history of the Hohri case after

remand is instructive. The district court for the District of

Columbia dismissed the case under Rule 12(b)(1), based

upon the plea of the defendant, the United States, that the

claim was barred by the applicable statute of limitations.

Hohri v. United States, 586 F. Supp. 769 (D.D.C. 1984).

Judge Oberdorfer noted the following regarding the lim-

itations statute:

The length of a statute of limitations is a product of a

legislative weighing of competing claims of fairness —

the need of the plaintiffs for a reasonable amount of

time within which to present their claims, and the

right of defendants to be free of stale claims. Statutes

of limitations also protect both the Court and the

defendant from cases where the loss of evidence — by

death or disappearance of witnesses, fading memo-

ries, or disappearance of documents - may frustrate

the search for truth.

586 F.Supp. at 785, citing, United States v. Kubrick, 444 U.S.

111, 117, 62 L.Ed.2d 259 (1972). The district court con-

cluded that in Hohri, as in the present case, the statute of

limitations ran long before the suit was filed. 586 F. Supp.

at 785.

15

The Hohri plaintiffs further argued that even if the

claim was facially barred by the limitations statute, the

statute was in fact tolled because of fraudulent conceal-

ment. In answer to this claim, the district court reviewed

the historical background of the claim to determine at

what point in time the plaintiffs, through due diligence,

could have discovered the existence of their claim. 586 F.

Supp. 787-90. The court noted that once a plaintiff is on

inquiry that has a potential claim, the statute begins to

run. Id. at 790-91. The court also rejected the plaintiffs’

further argument that certain “aggravating factors” exis-

ted which should be weighed in judging the plaintiff’s

due diligence in discovering his claim. Id.

The United States Court of Appeals for the Federal

Circuit affirmed Judge Oberdorfer’s decision that the

claims were barred by the statute of limitations. Hohri v.

United States, 847 F.2d 779 (Fed. Cir. 1988). This Court

denied the petition for Writ of Certiorari on October 31,

1988. ___ ~-U.S. __, 109 S.Ct. 307 (1988). In light of the

subsequent history of Hohri, the Fifth Circuit’s decision in

this case is, in fact, in complete agreement with the Hohri

case.

B. Dismissal of the Case Under Rule 12(b)(6) was

Proper Because the Claim Failed to State a Cause of

Action Against Any of the Defendants

The trial court dismissed the claim not only because

suit was barred by the statute of limitations, but also

because the complaint failed to assert that any named

defendant actually violated the federally protected rights

of any of the plaintiffs. The language of the Civil Rights

Act is clear; suit may only be maintained against those

16

persons who actually violated the rights of the Plaintiff.

For example, Section 1983 does not provide for liability

under the theory of respondeat superior; only those per-

sons or entities directly involved in the wrongdoing are

liable under the Act. Monell v. Department of Social Ser-

vices, 436 U.S. 658, 56 L.Ed.2d 611 (1978); Cross, 713 F.2d

at 159 (Clark, J., concurring).

The plaintiffs’ generalized claims of wrongdoing

extend to certain unnamed, unknown individuals who

lived decades ago, as well as to the unknown members of

the Ku Klux Klan, and certain unknown public officials

living at or near the time of Anderson Willis. Nowhere is

there a single factual complaint against Judge Alderman,

any identified members of the Freestone County Sheriff’s

Department, or any other Freestone County officials.

Plaintiffs complained of a certain alleged incident

between Patsy Stroud and Jeannette Willis Atkins; that

incident, if it occurred, occurred subsequent to the filing

of the present lawsuit.

The complaint clearly failed to allege any specific

factual allegation against any of the Freestone County

Defendants which would support a judgment for the

Plaintiffs under 42 U.S.C. Section 1983.

C. Based Upon the Foregoing, the Decision of the Fifth

Circuit in This Case Does Not Warrant Review by

This Court Through the Plaintiffs’ Petition for Writ

of Certiorari

The trial court concluded that the Plaintiffs’ suit

should be dismissed because the pleadings affirmatively

showed that the claim was barred by the statute of limita-

tions and that the complaint failed to state a cause of

17

action against the particular defendants. The Fifth Circuit

affirmed, finding that this particular set of facts did not

justify tolling the statute of limitations. No unique or

important federal question is presented by the Plaintiffs’

case. This Court has previously affirmed that state limita-

tions statutes and tolling procedures are not inconsistent

with the policies behind the Civil Rights Act; having

followed this Court’s directions in ascertaining the

appropriate limitations period, the lower courts’ deci-

sions were proper. Since the Fifth Circuit’s opinion does

not conflict with any previous opinions of another circuit

or of this Court on the same matters, and since no impor-

tant question of federal law is presented by the decision,

the petition for writ of certiorari should be denied.

,%

v-

CONCLUSION

For all of the reasons set out above, this Court is

respectfully requested to deny the Petition for Writ of

Certiorari filed by the Plaintiffs.

Respectfully submitted,

Ha ey, Davis, WREN,

Bristow & Rasner, P.C.

Hersert S. Bristow

Attorney for Respondents

United Bank Plaza, Suite 300

510 North Valley Mills Drive

Waco, Texas 76710

(817) 776-3336