Brief for the Respondents in Opposition — White v. Padgett

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IN THE | MICHAEL ROGAK, J@,

SUPREME COURT OF THE UNITED STATES

Term, 1973

No.

EARL WHITE,

Petitioner,

versus

DR. GLEN E. PADGETT, DR. ROY W. WANDECK, and

FAYE L. CONNOR,

Respondents

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

J. BEN WATKINS

Watkins & Hill

The Title Building

Tallahassee, Florida

SCOTT NABORS

Assistant Attorney General

Department of Legal Affairs

The Capitol

Tallahassee, Florida

BEN F. BARNES

Barnes & Grant

O 114 S. Jefferson Street

& Marianna, Florida

THOMAS C. WILKINSON

115 N. Jefferson Street

Marianna, Florida

W.K. WHITFIELD

Exchange Building

Tallahassee, Florida

Attorneys for Respondents

INDEX

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

REASONS FOR DENYING THE WRIT

POINT ONE

POINT TWO

CONCLUSION

CERTIFICATE OF SERVICE

PAGE

CITATIONS

BUCK V. MOURADIAN

100 So. 2d 70 (3rd Cir. 1958)

CAREY V. BEYER

Fla. 1954, 75 So. 2d 217, 218

HOFFMAN V. WAIR

193 F. Supp. 727 (D.C. Oregon 1961)

KNOWLES V. CARSON

419 F. 2d 369 (5th Cir. 1969)

LUCOM V. ATLANTIC NATIONAL

BANK OF WEST PALM BEACH, FLORIDA

354 F. 2d 51 (5th Cir. 1965)

MCGUIRE V. BAKER

421 F. 2d 895 (5th Cir. 1970)

MILLS V. SMALL

446 F. 2d 249 (9th Cir. 1971)

MIZELL V. NORTH BROWARD

HOSPITAL DISTRICT

427 F. 2d 468 (Sth Cir. 1970)

MONROE, ET AL. V. PAPE, ET AL.

365 U.S. 167 (1961)

NEVELS V. WILSON

423 F. 2d 691 (5th Cir. 1970)

PAGE

~

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1973

No.

EARL WHITE,

Petitioner,

versus

DR. GLEN E. PADGETT, DR. ROY W. WANDECK,

and FAYE L. CONNOR,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents, DR. GLEN E. PADGETT, DR. ROY W.

WANDECK, and FAYE L. CONNOR, file this Brief in

Opposition to Petition of EARL WHITE, seeking Writ of

Certiorari to the United States Court of Appeals for the Fifth

Circuit, to review the judgement and opinion of that court

entered in the cause on March 2, 1973.

OPINIONS BELOW

The opinion of the District Court announced on February 2,

1972, (N.D. Fla. February 21, 1972) dismissed the action for

failure to state a claim upon which relief can be granted. The

Court of Appeals affirmed (Fifth Circuit, March 2, 1973)

holding that the statute of limitations barred Petitioner’s cause

of action (see attached opinion). Petition for rehearing was

denied on April 3, 1973.

JURISDICTION

Petitioner asserts jurisdiction under 28 U.S.C., Section 1343.

QUESTIONS PRESENTED

Whether the Court of Appeals erred in holding that the

applicable statute of limitations for an action brought under

Title 42 U.S.C.A., Sec. 1983, is Fla. Stat., Sec. 95.11 (5) (a)

(1971.)

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REASONS FOR DENYING THE WRIT

POINT ONE

Petitioner argues that on actions brought pursuant to Title

42 US.C.A., Sec. 1983, there is a conflict between the Circuit

Courts of Appeal as to which statute of limitations is to be

applied. Respondents submit there is no conflict between the

decisions of the Courts of Appeal in this regard.

Petitioner concedes the applicable statute of limitation is the

one which the forum state would apply, and when Congress has

provided no period of limitation for a federal claim, the

Federal Courts must borrow the applicable statute of

limitations from the state in which it sits. O’SULLIVAN V.

FELIX, 233 U.S. 318 (1914); BEARD V. STEPHENS, 372 F. 2d

285 (5th Cir. 1967).

Up to this point, Petitioner and Respondents are in

agreement. However, Petitioner then takes the position that

decisions from Courts of Appeal of the various circuits are in

conflict as to which state limitation should apply in a given

case.

One decision supposedly in conflict was cited as MCGUIRE

V. BAKER, 421 F. 2d 895 (5th Cir. 1970). That case involved a

fandowner’s action for damages for alleged destruction of

speculative value of land, as a result of dry holes drilled by oil

companies. Action was barredbecause the landowner had taken

no action for two years. The Texas two year statute of

limitation read as follows:

“There shall be commenced and prosecuted within

two years after the cause of action shall have

accrued...all actions or suits...of the following

description:

1. Actions of trespass for injury done to the

estate or property of another.”

The Court then stated:

“It is well established that when as here, Congress

has provided no period of limitation for federal

claim, the Federal Courts must borrow the

applicable statute of limitations from the state in

which it sits... This borrowing is a two step process.

First the essential nature of the federal claim must

be determined. Secondly, the state law must be

looked to in order to determine which state statute

is applicable to claims like the one the Court has

determined it is presented with...

“Although McGuire argued that his action is

essentially of an equitable nature...it seems clear

that it is really to recover damages...or for

trespass...in either case the Texas two year statute

of limitations applies...”

It would seem clear that the Court in MCGUIRE supra, was

applying Texas statute of limitations as intended by that state.

Although McGuire argued the equitable nature of his claim, the

Court held that even if he could assert such a theory because of

the constitutional claim, the essentially trespass character of

the claim was not changed. This is entirely consistent with the

holding in the case sub judice.

In the case of MONROE, ET AL., V. PAPE, ET AL., 365 U.S.

167 (1961), also cited by the Petitioner, the petition was for

certiorari to the Court of Appeals for the Seventh Circuit.

Petitioners (six Negro children and their parents) brought

action in the Federal District Court against the City of Chicago

and thirteen police officers for violation of their rights under

the Fourteenth Amendment.

This case had nothing with the question of statute of

limitations and creates no conflict in that regard. The Court

was merely looking to see whether state law was being

administered impartially as to all citizens and that all were

being accorded equal protection. The main issue as stated by

that Court is as follows:

“There was no...quarrel with the state laws on the

books. It was their lack of enforcement that was

the nub of the difficulty...”

In the case of HOFFMAN V. WAIR, 193 F. Supp. 727 (D.C.,

Oregon 1961), Petitioner also seeks to find conflict. This case

involved an action to recover damages for an alleged

conspiracy to violate the Plaintiff's civil rights.

The applicable Oregon statute provided for a six year statute

of limitation for actions upon a liability created by statute, and

a two year limitation in actions for fraud, deceit, assault,

battery, false imprisonment, criminal conversation, or for any

injury to the person or rights of another, not arising on

contract, and especially enumerated. The Plaintiff contended

the six year limitations applied while Defendant countered that

the two year limitation was applicable.

It was the opinion of the Court the conflict as to which of the

two statutes would apply would be resolved by ascertaining the

meaning of “‘a liability created by statute,” and in arriving at

its definition the Court stated:

“the true right or duty alleged to have been

infringed or breached...must be asserted in order

to determine the foundation or source of any legal

liability flowing therefrom...merely because

personal injury is inflicted upon one in the course

of the violation of federal law by another, i.e.

violation of civil rights, Title 42, U.S.C.A. Sec.

1983, does not change the resulting liability of the

wrongdoer for a tortuous act under common law,

and the applicable state limitation of action

thereon should apply.”

Again the Court looks to the applicable state law in

determining whether or not a particular action is barred. This

is consistent with the instant holding review of what is sought.

The case of LUCOM V. ATLANTIC NATIONAL BANK OF

WEST PALM BEACH, FLORIDA, 354 F. 2d 51 (5th Cir. 1965)

involved a diversity suit for damages resulting from taking of

property without due process. Summary judgment was entered

by the District Court on grounds the action was barred by

limitations. In affirming, the Court of Appeals stated:

“Florida has two limitation statutes which might

be relevant to this matter: Fla. Stat. Ann. Sec.

95.11, which provides a general four year period

and a three year period...;

we

“Florida cases hold that when two statutes limit

the time in which an action may be brought, both

apply and the dilatory litigant is caught by

whichever runs first.” (Emphasis supplied).

The Court then determined either statute might bar the

Appellant’s action, and under Florida law a cause of action

accrues and the statutory limitation period commences when

the invasion of a right occurs, if there is notice of the invasion,

even though the damage may not materialize until later.

In KNOWLES V. CARSON, 419 F. 2d 369 (5th Cir. 1969), an

action was brought against certain officials of the State of

Florida, alleging civil conspiracy under the Civil Rights Act. In

affirming the District Court dismissal of the Complaint as

barred by the Statute of Limitations, the Court of Appeals

stated:

“Sections 1983 and 1985 do no include a specific

limitation. Since the Act contains no provision

limiting the time within which an_ action

thereunder may be brought, the applicable statute

of limitations is that which the state would enforce

has the action seeking similar relief been brought

in the state court...” (Emphasis supplied).

Again this is totally consistent with the instant opinion. In

the later case of NEVELS V. WILSON, 423 F. 2d 691 (5th Cir.

1970) the Court held an action for violation of civil rights was

governed by state statute of limitations prescribing actions for

liabilities created by statute must be commenced within three

years. The Court further stated:

“It appears...that the event...occurred more that

three but less than four years prior to the filing of

the complaint. F.S. 95.11 (5) (a) F.S.A. provides

that actions for liabilites created by statute must

be commenced within three years after the accrual

of the action. We find that statute to be controlling

as to the civil rights claim..thus the claim is

barred...”

Moving to another circuit, in MILLS V. SMALL, 446 F. 2d

249 (9th Cir. 1971), the Plaintiff brought in propria persona

action charging the medical examiner for Superior Court with

certifying he had examined Plaintiff when he had not. The

District Court dismissed on grounds the action was barred by

the statute of limitations and was affirmed by the Court of

Appeals. The Appeals Court stated:

“*...We assume it (complaint) charges a violation of

her (Plaintiff’s) civil rights under 42 U.S.C., Sec.

1983. That statute contains no limitation period

but resort cen be made to California law. A

liability created by statute must be brought within

three vears...”

All cases cited by Petitioner are in total accord with and form

the basis for the conclusion reached by the Fifth Circuit Court

of Appeals in this case. Nowhere is conflict shown.

POINT TWO

Petitioner argues the statute of limitations should have been

tolled during the 2-year period he was engaged in seeking a

remedy in the State Court, and the statute of limitation did not

begin to run at the time of adjudication but instead ran from

the time he attempted to vote.

In his Brief, the Petitioner is attempting to again argue the

merits of the case. Petitioner relies on the case of MIZELL V.

NORTH BROWARD HOSPITAL DISTRICT, 427 F. 2d 468

(Sth Cir. 1970). The case involved an action under the Civil

Rights Act by a surgeon alleging violation of his constitutional

rights by the Hospital District and certain doctors in the

suspension of his surgical privileges. The Court stated:

“The trial court applied the state statute of

limitations...and held that in a single conspiracy

case the statute of limitations begins to run from

the date of the first overt act causing injury to the

Plaintiff....’ (Emphasis supplied).

In BUCK V. MOURADIAN, 100 So. 2d 70 (3rd Cir. 1958) the

court stated:

“The general rule is to the effect that when there

has been notice of the invasion of a legal right or a

person has béen put on notice of his right to a

cause of action the statute of limitations begins to

run...”

In the case sub judice Petitioner states he was never

incompetent and therefore should not have been

institutionalized. If this be the case, then “notice” occurred at

the first moment he was confined on April 18, 1965. He was

delivered to Escambia General Hospital on August 21, 1965 and

subsequently released on August 30, 1965, since he was not, in

the opinion of Dr. Theodore J. Marshall, M.D., suffering from

any psychiatric disease.

The accrual of the cause of action may be predicated upon

the last overt act, KNOWLES V. CARSON, supra, HOFFMAN V.

HALDEN, supra, and even incarceration in prison does not toll

the limitation period. KNOWLES V. CARSON, supra.

The date of the alleged last overt act “by these Defendants

would be the date of the inquisition of incompetency on

August 21, 1965. The present action was commenced by filing

the original complaint on June 23, 1971. Some five years, ten

months and two days elapsed between these two dates. Using

these dates this action would be barred both by the 4-year

limitation of Florida Statutes Section 95.11 (4) and the 3-year

limitation of Section 95.11 (5) (a).

The Court of Appeals found on page 7 of its order, and

rightly so, that Section 95.11 contains no provision suspending

or tolling the limitation period because of disability arising

from insanity or any other cause. The Court then quoted from

CAREY V. BEYER, Fla. 1954, 75 So. 2d 217, 218 wherein

Florida’s highest court held:

“It is clear that his action was barred unless his

insanity tolled the statute

“The general rule is that unless a statute of

limitations contains a saving clause, relief from its

provisions account of disability will not be

granted...”

Petitioner further argues the statute of limitations actually

should not have started to run until he was denied the right to

vote in May of 1966. The Court below, on page 13 of its order,

referred to the fact that Petitioner’s amended complaint clearly

stated injury by false imprisonment during the period that he

was forcibly confined in the Escambia Hospital. Even if

Petitioner’s argument was sound and the statute did run from

May, 1966, he still delayed until June 23, 1971 before filing his

complaint which is more than four years.

In a third theory advanced by Petitioner, he relies on

MIZELL V. NORTH BROWARD HOSPITAL DISTRICT, 427

F. 2d 468 (5th Cir. 1970) to argue that the limitation period was

tolled during the pendency of the state proceeding to vacate the

incompetency order. Even so, Petitioner would be charged with

a delay of more that three years. Respondents are in agreement

with the Court below that Petitioner’s reliance is misplaced and

that NEVELS, supra, and MILLS, supra are controlling as to

the rule that the 3-year limitation under F.S. 95.11 (5) (a) is

applicable to claims under 42 U.S.C. ss 1983. Petitoner’s claim

in State Court was to have his competency restored. The case

sub judice was a new action originating in federal court, for

damages. These arguments are but repeats of the contentions

advanced below and do not confer jurisdiction on this Court

under the conflict theory. The Petitioner must first gain entry

to the jurisdiction of the Court before he can have an

additional review on the merits of his claim.

CONCLUSION

The order of the Court of Appeals barring this claim under

Florida Statutes 95.11 was correct and does not conflict with

other decisions. Petitioner has failed to show conflict sufficient

to invoke the jurisdiction of the Court. 28 U.S.C. ss 1343.

Respectfully submitted,

J. BEN WATKINS

Watkins & Hill

The Title Building

Tallahassee, Florida

SCOTT NABORS

Assistant Attorney General

Department of Legal Affairs

The Capitol Building

Tallahassee, Florida

BEN F. BARNES

Barnes & Grant

114 S. Jefferson Street

Marianna, Florida

THOMAS C. WILKINSON

115 N. Jefferson Street

Marianna, Florida

W.K. WHITFIELD

Exchange Building

Tallahassee, Florida

Attorneys for Respondents

CERTIFICATE OF SERVICE

I certify two copies of the foregoing Brief in Opposition to ©

Petition for Writ of Certiorari were furnished Ben W.

Thompson, Jr., P. O. Box 1191, Tallahassee, Florida, by

mail this 27th day of July, 1973.

Pres 2 on

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