Petition for Writ of Certiorari — Deaton v. City of Dayton

Supreme Court, U.

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Supreme Court of the United States

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October Term, 1993

ELAINE DEATON, et al.,

Petitioners,

VS.

CITY OF DAYTON, et al.,

Respondents.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS W. CONDIT

Counsel of Record

CONDIT & DRESSING CO., L.P.A.

Attorneys for Petitioners

5041 Oaklawn Drive

Cincinnati, Ohio 45227

(513) 351-9700

(800) 3 APPEAL « (800) 5 APPEAL « (600) BRIEF 21

QUESTIONS PRESENTED FOR REVIEW

1. Has the Sixth Circuit Court of Appeals violated the

mandate of Owens v. Okure, 488 U.S. 235 (1989), for § 1983 claims

in Ohio by adopting a two year statute of limitation for “bodily

injury” instead of a four year residual personal injury statute?

2. Has the Sixth Circuit Court of Appeals violated the

principles of 42 U.S.C. § 1988 by refusing to adopt, in the absence

of Ohio Supreme Court precedent, the construction of Ohio's

personal injury statutes as defined by an Ohio Court of Appeals?

ii

PARTIES TO THE PROCEEDINGS

The names of all of the parties to the proceedings in the United

States Court of Appeals for the Sixth Circuit are as follows:

Plaintiffs/Appellants/Petitioners:

Elaine Deaton, Constance Hurrier', Geraldine Dzikowski,

Virginia Bachelier, Kathleen Dewey, Marcella Tilford, Estelle

Quallen and Margaret Geis.

Defendants/Appellees:

City of Dayton and Billy C. Russell.

Unidentified individuals designated as defendants “John

Smith(s) and Jane Smith(s)” in the original Complaint were never

identified in this action and did not participate at any stage of the

proceedings below.

None of the parties is a corporation, except that Respondent

City of Dayton is a municipal corporation organized under the laws

of Ohio. See Rule 29.1.

1. Constance Hurrier was killed in an automobile accident while this action was

pending before the Sixth Circuit, and her surviving spouse, Paul Hurrier, has been

substituted as a party.

en Ne Sn te

TABLE OF CONTENTS

Page

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

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Reasons for Granting the Writ ...................... 6

I. The Sixth Circuit Court of Appeals has violated the

mandate of Owens v. Okure, 488 U.S. 235 (1989),

for § 1983 claims in Ohio by adopting a two year

statute of limitation for “bodily injury” instead of a

four year residual personal injury statute. ....... 6

A. Supreme Court Precedent. ............... 7

B. Sent CircuitCase Law. .........ccccccce 4

iv

Contents

Page

CC Gee sc. Assit 10

II. The Sixth Circuit Court of Appeals has violated the

principles of 42 U.S.C. § 1988 by refusing to adopt,

in the absence of Ohio Supreme Court precedent,

the construction of Ohio’s personal injury statutes

as defined by an Ohio Court of Appeals. ........ 13

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TABLE OF CITATIONS

Cases Cited:

Amer v. Akron City Hosp., 47 Ohio St. 2d 85, 351 N.E. 2d

ET SUedvec10sbceubeakiaicek iad rlesdin 1]

Bojac Corp. v. Kutevac, 64 Ohio App. 3d 368 (Trumble Co.

PED Seb dedsetcrewks Swedabeuseeiieasiesncie 6, 13,14

Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989) .... 9,13

Collard v. Kentucky Board of Nursing, 896 F.2d 179 (6th

Ge RUE hehe sin nenvu aca cruise dobedeannennuce 10

Corpman v. Boyer, 171 Ohio St. 233, 169 N.E. 2d 14 (1960)

Lh0dn066d00 pepehehhetuabados bAdsdwd saddens 12

Elaine Deaton, et al., v. City of Dayton, et al., Case No. 92-

eh CTT Pe er nee l

Vv

Contents

Page

Elaine Deaton, et al., v. City of Dayton, et al., Case No. C-

3-92-152(S.D. Ohio 11/3/92 (unreported) .......... l

Elzy v. Robinson, 868 F.2d 793 (Sth Cir. 1989) ......... 14

Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S. Ct.

SFO Oe is le POD EEIOOD 6 cccccccccccccccceccoces 14

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989) ............ 14

Lawyers Cooperative Publishing Co. v. Meuthing, 65 Ohio

St. 3d 273, 603 N.E. 2d 969(1992) ................ 1]

Owens v. Okure, 488 U.S. 235 (1989) ........i,6,8,9, 10, 12, 13

Small v. Inhabitants of City of Belfast, 796 F.2d 544 (lst

a 14

Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct.

ha rei ee eS 6,8, 10, 12

Yaklevich v. Kemp, Schaeffer & Rowe, 68 Ohio St. 3d 294

nae dR Ne hid dred ceneadveteds oe tics Ss: 1]

Yeager v. Local Union 20, 6 Ohio St. 3d 369 (.. 2a 10, 11

Statutes Cited:

I aa i a od ms l

SERINE er aro aan ee em 5

vi

Contents

Page

28 U.S.C. § 1343... 5

42U.S.C.§ 1983 ... i, 1,5,6,7,8, 10,13

Ohio Revised Code:

yi! | eeeree .2,7, 10,12

§ 2305.09(D) .... 6,9, 11,12, 13

ye, 8 BP rr errr ree 3,7, 11

OFS OG: vc cvesectbecdenenéceesuess 12

Other Authority Cited:

Restatement of the Law 2d, Torts (1965)7i,§46(1) ..... 11

APPENDIX

Appendix A — Order Denying Petition for Rehearing of

the United States Court of Appeals for the Sixth Circuit

Filed February 24, 1994 ....... 2.0 eee cece ences la

Appendix B — Opinion of the United States Court of

Appeals for the Sixth Circuit Filed December 8, 1993 . 3a

Appendix C — Decision and Order of the United States

District Court for the Southern District of Ohio, Western

Division at Dayton Filed November 3, 1992 ......... lla

OPINIONS BELOW

The written decision of the United States Court of Appeals for

the Sixth Circuit is titled Elaine Deaton, et al., v. City of Dayton, et

al., Case No. 92-4289 (6th Cir. 12/8/93) (unreported).

The written decision of the United States District Court for the

Southern District of Ohio (Western Division) is titled Elaine

Deaton, et al., v. City of Dayton, et al., Case No. C-3-92-152

(S.D.Ohio 11/3/92) (unreported).

STATEMENT OF JURISDICTION

This action originated ir the United States District Court for

the Southern District of Ohio, and was brought pursuant to 42

U.S.C. § 1983.

The judgment of the United States Court of Appeals for the

Sixth Circuit, affirming the dismissal of all claims, was entered on

December 8, 1993. The Order of the Sixth Circuit denying a

petition for rehearing en banc was entered on February 24, 1994

By Order of this Court (Associate Justice Stevens) dated

February 22, 1994, the time for filing a Petition for a Writ of

Certiorari has been extended to and including May 7, 1994

This Court has jurisdiction under 28 U.S.C. § 1254.

STATUTES INVOLVED

Title 42 United States Code:

§ 1983 Proceedings in Vindication of Civil Rights;

attorney’s fees.

The jurisdiction in civil and criminal matters conferred

2

on the district courts by the provisions of this Title, and of

Title “CIVIL RIGHTS”, and of Title “CRIMES”, for the

protection of all persons in the United States in their civil

rights, and for their vindication, shall be exercised and

enforced in conformity with the laws of the United States,

so far as such laws are suitable to carry the same into

effect; but in all cases where they are not adapted to the

object, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses against

law, the common law, as modified and changed by the

constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is held,

so far as the same is not inconsistent with the Constitution

and laws of the United States, shall be extended to and

govern the said courts in the trial and disposition of the

cause, and, if it is of a criminal nature, in the infliction of

punishment on the party found guilty. In any action or

proceeding to enforce a provision of sections 1977, 1978,

1979, 1980, and 1981 of the Revised Statutes, title [X of

Public Law 92-318, or title VI of the Civil Rights Act of

1964, the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable

attorney’s fee as part of the costs.

Ohio Revised Code:

§ 2305.09 Four Years; Certain Torts.

An action for any of the following causes shall be brought

within four years after the cause thereof accrued:

(A) For trespassing upon real property;

(B) For the recovery of personal property, or for taking

or detaining it;

3

(C) For relief on the ground of fraud;

(D) For an injury to the rights of the plaintiff not arising

on contract nor enumerated in sections 2305.10 to

2305.12, inclusive, 2305.14 and 1304.29 of the Revised

Code.

§ 2305.10 Bodily Injury or Injury to Personal

Property.

An action for bodily injury or injury to personal property

shall be brought within two years after the cause thereof

arose.

For purposes of this section, a cause of action for bodily

injury caused by exposure to asbestos or to chromium in

any of its chemical forms arises upon the date on which

the plaintiff is informed by competent medical authority

that he has been injured by such exposure, or upon the

date on which, by the exercise of reasonable diligence, he

should have become aware that he had been injured by the

exposure, whichever date occurs first.

For purposes of this section, a cause of action for bodily

injury incurred by a veteran through exposure to

chemical defoliants or herbicides or other causative

agents, including agent orange, arises upon the date on

which the plaintiff is informed by competent medical

authority that he has been injured by such exposure.

As used in this section, “agent orange,” “causative

agent,” and “veteran” have the same meanings as in

section 5903.21 of the Revised Code.

For purposes of this section, a cause of action for bodily

4

injury which may be caused by exposure to

diethylstilbestrol or other nonsteroidal synthetic

estrogens, including exposure before birth, arises upon

the date on which the plaintiff learns from a licensed

physician that he has an injury which may be related to

such exposure, or upon the date on which by the exercise

of reasonable diligence he should have become aware

that he has an injury which may be related to such

exposure, whichever date occurs first.

STATEMENT OF THE CASE

A. Statement of Facts

The factual record is comprised solely of the Affidavit of

Plaintiff/Petitioner Kathleen Dewey, from which the relevant facts

can be summarized as follows:

1. On March 29, 1989 Petitioners were arrested for criminal

trespass, a nonviolent misdemeanor, while engaged in a protest at

an abortion center in Kettering, Ohio.

2. Petitioners were transported to and housed as pre-trial

detainees in the Dayton Human Rehabilitation Center (“DHRC”)

for approximately 11 days, where they were all strip searched as

part of the intake and visitation procedures. During their

incarceration, Petitioners believed that they were held in a facility

of Montgomery County, Ohio, and supervised by County

employees.

3. In March 1991, Petitioners filed a lawsuit against

Montgomery County, Ohio and its employees, only to learn later

that DHRC was operated by the City of Dayton.

4. This action against the City of Dayton and DHRC

Superintendent Billy Russell was filed on April 7, 1992,

8 ee be ong

5

approximately three (3) years after the unconstitutional strip

searches occurred.

B. Proceedings

On April 7, 1992, Petitioners Elaine Deaton, Constance

Hurrier, Geraldine Dzikowski, Virginia Bachelier, Kathleen

Dewey, Marcella Tilford, Estelle Quallen and Margaret Geis

(collectively “Petitioners”) filed a Complaint in the United States

District Court for the Southern District of Ohio, Western Division,

charging Defendants City of Dayton and Billy C. Russell

(hereinafter referred to jointly as “the City”), and unidentified John

Smith and Jane Smith Defendants with conducting illegal and

unconstitutional strip searches. The jurisdiction of the District

Court was invoked pursuant to 42 U.S.C. § 1983 and 28 U.S.C.

§ 1331 and § 1343. The Complaint sought compensatory and

punitive damages, costs and reasonable attorney fees pursuant to

42 U.S.C. § 1988.

On May 27, 1992 the District Court issued a Pretrial Order

limiting all action in the case to the resolution of the statute of

limitations issue. On November 3, 1992, the District Court entered

a Decision and Order granting the City’s Motion for Summary

Judgment on the statute of limitations issue and dismissing all

claims with prejudice. On November 27, 1992, Petitioners filed a

Notice of Appeal to the United States Court of Appeals for the

Sixth Circuit, which affirmed the judgment of the District Court on

December 8, 1993. On December 22, 1993 Petitioners filed a

Application for Rehearing En Banc, which was denied by the Sixth

Circuit in an Order dated February 24, 1994.

This Petition for a Writ of Certiorari is filed pursuant to an

Order of this Court extending the time for filing until May 7, 1994.

6

REASONS FOR GRANTING THE WRIT

Petitioners respectfully submit that a writ of certiorari should

be granted because of the Sixth Circuit’s misapplication of Ohio’s

personal injury statutes, in the context of the following principles:

(1) The Sixth Circuit’s decision violates the spirit and the

underlying rationale of Wilson v. Garcia, 471 U.S. 261 (1985),

which broadly characterized 42 U.S.C. § 1983 (“§ 1983”) as

conferring “a general remedy for injuries to personal rights”,

(2) The Sixth Circuit’s decision violates the specific holding

of Owens v. Okure, 488 U.S. 235 (1989), which instructs the lower

courts to adopt a state’s “general or residual” statute of limitation

for personal injuries, and specifically endorses, for states where

there are multiple personal injury statutes, language nearly

identical to that found in R.C. § 2305.09(D);

(3) The Sixth Circuit’s decision disregards various decisions

of the Supreme Court of Ohio clearly applying R.C. § 2305.09(D)

as a residual personal injury statute;

(4) The Sixth Circuit’s decision disregards the binding effect

of Bojac Corp. v. Kutevac, 64 Ohio App. 3d 368 (1990), a post-

Owens decision by an intermediate state court selecting R.C.

§ 2305.09(D) as the residual personal injury statute of limitations

for § 1983 actions in Ohio.

I. THE SIXTH CIRCUIT COURT OF APPEALS HAS

VIOLATED THE MANDATE OF OWENS V. OKURE, 488

U.S. 235 (1989), FOR § 1983 CLAIMS IN OHIO BY

ADOPTING A TWO YEAR STATUTE OF LIMITATION

FOR “BODILY INJURY” INSTEAD OF A FOUR YEAR

RESIDUAL PERSONAL INJURY STATUTE.

The two Ohio statutes which form the crux of this dispute state

ene Le ee ee eee

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in relevant part (emphasis supplied):

§ 2305.10 Bodily Injury or Injury to Personal

Property.

An action for bodily injury or injury to personal property

shall be brought within two years after the cause thereof

arose....

and

§ 2305.09 Four Years; Certain Torts.

An action for any of the following causes shall be brought

within four years after the cause thereof accrued:

* * a

(D) Foran injury to the rights of the plaintiff not arising

on contract nor enumerated in sections 2305.10 to

2305.12, inclusive, 2305.14 and 1304.29 of the Revised

Code.

Petitioners submit that a reading of these two statutes, in light

of the case law discussed below, justifies summary reversal of the

Sixth Circuit’s decision in this case.

A. Supreme Court Precedent.

In the absence of guiding federal principles on § 1983 issues,

the federal courts are instructed to apply state law principles which

are not inconsistent with federal law. 42 U.S.C. § 1988. Looking to

the various state laws, the lower courts struggled for years to select

the appropriate statute of limitations for § 1983 cases, having to

analogize between the respective state statutes and whatever

federal causes of action were at issue in a given case. Such an

approach, however, bred confusion and inconsistency.

This Court took a major step toward clearing up the confusion

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

105 S. Ct. 1938 (1985), determining that the lower courts should

abandon the confusing practice of characterizing claims and

instead borrow and apply to all § 1983 claims in a given state a

single statute of limitations. The Wilson Court went on to reject the

application of intentional tort statutes in favor of a state’s personal

injury statute. Reviewing the history, purpose and policies

underlying § 1983, the Wilson Court stated:

Had the 42d Congress expressly focused on the issue

decided today, we believe it would have characterized §

1983 as conferring a general remedy for injuries to

personal rights.

Wilson v. Garcia, 471 U.S. at 278.

Unfortunately, Wilson led to new confusion in states such as

Ohio, where\more than one personal injury statute exists. This

Court addressed the dilemma of multiple personal injury statutes in

Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594, 109 S. Ct. 573

(1989), rejecting New York’s one year statute of limitations

(covering eight intentional torts) in favor of its three year statute

for actions “to recover damages for a personal injury except as

[otherwise] provided ....” Owens held that “where state law

provides multiple statutes of limitations for personal injury

actions, courts considering § 1983 claims should borrow the

general or residual statute for personal injury actions. Jd. at 249-50.

The Owens Court reasoned:

In marked contrast to the multiplicity of state intentional

9

tort statutes cf limitations, every State has one general or

residual statute of limitations governing personal injury

actions. Some states have a general provision which

applies to all personal injury actions with certain specific

exceptions. Others have a residual provision which

applies to all actions not specifically provided for,

including personal injury actions. Whichever form they

take, these provisions are easily identifiable by language

or application. Indeed, the very idea of a general or

residual statute suggests that each State would have no

more than one. Potential § 1983 plaintiffs and defendants

therefore can easily ascertain, with little risk of confusion

or unpredictability the applicable limitations period in

advance of filing a § 1983 action.

488 U.S. at 245-48 (emphasis supplied). The language in R.C.

§ 2305.09(D) is clearly that referred to in Owens as “easily

identifiable by language or application”. No other Ohio personal

injury statute has language even remotely resembling it.

B. Sixth Circuit Case Law.

In spite of this clear and unambiguous guidance from Owens,

the Sixth Circuit refuses to adopt or even discuss the language in

R.C. § 2305.09(D). Offering, for the first time, its rationale for

choosing Ohio’s “bodily injury” statute in Browning v. Pendleton,

869 F.2d 989 (6th Cir. 1989)(en banc), the Sixth Circuit explained

below that “we equated the general, unintentional personal injury

cause of action referred to by the Supreme Court with the general,

unintentional ‘bodily injury’ cause of action in Ohio Rev. Code

§ 2305.10.” Curiously, this rationale was not stated in Browning or

in any other Sixth Circuit decision prior to this case; § 2305.09(D)

itself was mentioned nowhere in Browning.

Moreover, in spite of Petitioners’ prodding, the Sixth Circuit

has offered no analysis of § 2305.09(D) in this case either. Only

10

Senior District Judge Charles W. Joiner, sitting by designation

from the Eastern District of Michigan, analyzed R.C. § 2305.09 in

a separate concurring opinion and fully agreed with Petitioners.

See Appendix at page 6a. Contrary to Wilson and Owens, the Sixth

Circuit has adopted an extraordinarily narrow definition of

personal injury (i.e., “bodily injury”) for Ohio’s § 1983 claims, and

refuses to consider the residual statute used for “non-bodily”

personal injuries.

Collard v. Kentucky Board of Nursing, 896 F.2d 179 (6th Cir.

1990), a nearly identical case decided by the Sixth Circuit for

Kentucky, does no harm to Petitioners arguments. In Collard, the

Sixth Circuit rejected a five year “personal rights” statute in favor

of a one year statute for “injury to the person”. The Sixth Circuit

noted that the language “personal injury” appears nowhere else in

Kentucky’s statutory scheme and apparently concluded that the

one year statute covered all personal injuries, both “bodily” and

“non-bodily”. The same conclusion simply cannot be drawn from

Ohio’s scherre and the judicial construction given to it by the Ohio

Courts.

C. Ohio Case Law.

A review of Ohio case law exposes the flaws in the Sixth

Circuit’s approach. Ohio law clearly recognizes causes of action

for “personal injuries” which involve more than mere “bodily

injury”, and § 2305.09(D) is always part of the analysis.

When the Supreme Court of Ohio first recognized the

intentional infliction of emotional distress as an actionable tort in

Ohio, it applied the four year limitations period found in R.C.

§ 2305.09(D). Yeager v. Local Union 20, 6 Ohio St.3d 369, 375

(1983). The standard adopted in Yeager leaves no doubt that itis a

tort sounding in personal injury:

One who by extreme and Outrageous conduct

intentionally or recklessly causes severe emotional

distress to another is subject to liability from such

emotional distress, and if bodily harm to the other results

from it, for such bodily harm.

Restatement of the Law 2d, Torts (1965) 71, § 46(1). /d. at 374

(emphasis supplied).

More recently in Lawyers Cooperative Publishing Co. v.

Meuthing, 65 Ohio St. 3d 273, 603 N.E. 2d 969 (1992), the

Supreme Court of Ohio considered applying R.C. § 2305.09(D) to

the tort of the negligent infliction of emotional distress. While

discussing the emotional pain and distress which are the subject of

these two “emotional distress” torts, the court stated: “There is no

doubt that these are personal injuries.” 65 Ohio St.3d at 280.

Although the Muething court ultimately applied the two year

statute of limitations embodied in R.C. § 2305.10 for the negligent

infliction of emotional distress, it appears to have done so only

because of the derivative relationship between that tort and the fear

of “bodily injury”. 65 Ohio St. 3d at 280. As Judge Joiner observed

on page four of his concurring opinion below: “Implicit in this

analysis was the court’s recognition that § 2305.09(D) would apply

only if one of the statutes listed therein did not.” (Original

emphasis). See Appendix at pages 9a - 10a.

Other “injuries to the person” for which the Supreme Court of

Ohio has applied the four year provision of § 2305.09(D) include

the loss of consortium, Amer v. Akron City Hosp., 47 Ohio St.2d 85,

351 N.E.2d 479 (1976), and abuse of process. Yaklevich v. Kemp,

Schaeffer & Rowe, 68 Ohio St. 3d 294 (1994). Significantly, the

Yaklevich court referred to Yeager parenthetically by noting that

the “four year statute of limitations [is] applicable to an injury not

listed in any of the sections referred to in R.C. 2305.09.” 68 Ohio

St. 3d at 300. (Emphasis supplied). Clearly, the Supreme Court of

Ohio has decided that R.C. § 2305.09(D) is Ohio’s residual

personal injury statute and regularly discusses it in that context.

12

Finally, Petitioners are compelled to address the argument

propounded by the City in the proceedings below: that

§ 2305.09(D) is actually the type of “catch-all” statute rejected by

Wilson and Owens, 488 U.S. at 250, n. 12. The City has managed to

find an old Ohio case which referred to “the catch-all clause of

§ 2305.09(D)”. Corpman v. Boyer, 171 Ohio St. 233, 169 N.E. 2d

14 (1960). This, however, is a feckless argument for several

reasons.

First, it pays homage to a phrase found in a 24 year old case

while ignoring the manner in which the statute has been used by

Ohio’s courts. Even Corpman is a loss of consortium case which

relied on § 2305.09(D). Second, from a functional standpoint, it is

clear that Ohio’s catch-all statute (ten years) is found in R.C.

§ 2305.14, which states:

§ 2305.14 FOR OTHER RELIEF

An action for relief not provided for in sections 2305.04

to 2305.131 [2305.13.1], inclusive, and section 1304.29

of the Revised Code, shall be brought within ten years

after the cause of action accrued. This section does not

apply to an action on a judgment rendered in another state

or territory.

Surely the City does not suggest that Ohio has two catch-all

statutes.

Third, R.C. § 2305.09 is accompanied by the title “Certain

Torts,” which limits its application much more so than the “For

Other Relief” label attached to § 2305.14. Clearly, § 2305.09(D) is

Ohio’s residual personal injury statute and § 2305.14 is Ohio’s

catch-all statute. Finally, even if one insists on calling R.C.

§ 2305.09 a “catch-all” statute, its use is clearly compatible with,

and even required by, the express language in Owens, 488 US. at

246, n.9; 488 U.S. at 251, n.12.

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Il. THE SIXTH CIRCUIT COURT OF APPEALS HAS

VIOLATED THE PRINCIPLES OF 42 U.S.C. § 1988 BY

REFUSING TO ADOPT, IN THE ABSENCE OF OHIO

SUPREME COURT PRECEDENT, THE CONSTRUCTION

OF OHIO’S PERSONAL INJURY STATUTES AS DEFINED

BY AN OHIO COURT OF APPEALS.

In Bojac Corp. v. Kutevac, 64 Ohio App. 3d 368, 370 (Trumble

Co. 1990), the Court of Appeals for Trumble County, Ohio

determined, in a post-Owens analysis, that R.C. § 2305.09(D) is the

general or residual statute for personal injury actions in Ohio. To

Petitioners’ knowledge, Bojac is the only Ohio appellate case

offering a post-Owens analysis of Ohio law without relying on

Sixth Circuit precedent. All other Ohio cases cited in this action by

the Sixth Circuit and the City rely upon the Sixth Circuit’s dubious

Browning rationale and present no independent state court analysis

of the relevant Ohio statutes.

Petitioners submit that the Sixth Circuit erred, and engaged in

the wrong analysis, when it concluded in this case that it did not

have to follow Bojac because “the problem of characterization ‘is

ultimately a question of federal law.’” See Sixth Circuit opinion at

Appendix page Sa. Petitioners submit that the “characterization”

game ended with Wilson’s broad characterization of all § 1983

claims as personal injuries. The issue has now shifted to one of

applying state law, and requires an interpretation of a state's

statutory scheme for personal injuries. This is, at best, a hybrid of

state/federal law and the Owens directive to apply a residual statute

of limitations which “embraces, either explicitly or by judicial

construction, unspecified personal injury actions”, Owens, 488

U.S. at 250, n. 12 (emphasis supplied), clearly requires an analysis

of state court judicial decisions. The fact that federal law is defined

by state law for issues such as this is a bit confusing, but should not

allow the lower federal courts to disregard state law altogether, as

the Sixth Circuit has done here.

14

The other federal circuits seem to understand their duty to

look to state law. See Elzy v. Robinson, 868 F.2d 793, 794 (Sth Cir.

1989)(referencing Louisiana case law); Gray v. Lacke, 885 F.2d

399, 408 (7th Cir. 1989)(referencing Wisconsin case law); Small v.

Inhabitants of City of Belfast, 796 F.2d 544 (ist Cir. 1986)

(referencing Maine case law).

Returning to the significance of Bojac, this Court has

previously made clear that the decisions of intermediate state

courts are binding on the federal courts on issues of state law:

The highest state court is the final authority on

state law, but it is still the duty of the federal

courts, where the state law supplies the rule of

decision, to ascertain and apply that law, even

though it has not been expounded by the

highest court of the State. . . .An intermediate

state court in declaring and applying the state

law is acting as an organ of the State and its

determination, in the absence of more

convincing evidence of what the state law is,

should be followed by a federal court in

deciding a state question.

Fidelity Union Trust Co. v. Field, 311 U.S. 169, 177-78, 61 S.Ct.

176, 178, 85 L. Ed. 109 (1940)(case involving the construction and

effect of a state statute).

The Bojac case, therefore, provides a second reason why the

Sixth Circuit must be reversed in this case. Any other result

empowers federal circuit courts to override the state courts on

matters of state law.

” _——" eS

de EE AL. ree HR AOD

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CONCLUSION

The decision of the Sixth Circuit Court of Appeals violates the

binding decisions of this Court and disregards the judicial

construction given to Ohio’s personal injury statutes, both

implicitly and explicitly, by the Supreme Court of Ohio and an

intermediate state court. Petitioners respectfully suggest again that

summary reversal is appropriate in this case.

Respectfully submitted,

THOMAS W. CONDIT

Counsel of Record

CONDIT & DRESSING CO., L.P.A.

Attorneys for Petitioner

5041 Oaklawn Drive

Cincinnati, Ohio 45227

(513) 351-9700

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APPENDIX A — ORDER DENYING PETITION FOR

REHEARING OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT FILED

FEBRUARY 24, 1994

No. 92-4289

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ELAINE DEATON, ETAL.,

Plaintiffs-Appellants,

v.

CITY OF DAYTON, ETAL.,

Defendants-Appellees.

ORDER

BEFORE: MARTIN and BOGGS, Circuit Judges; and JOINER,*

District Judge.

The court having received a petition for rehearing en banc, and

the petition having been circulated not only to the original panel

members but also to all other active judges of this court, and less

than a majority of the judges having favored the suggestion, the

petition for rehearing has been referred to the original hearing

panel.

* Hon. Charles W. Joiner, Senior United States District Judge for the Eastern

District of Michigan, sitting by designation.

2a

Appendix A

The panel has further reviewed the petition for rehearing and

concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Green

Leonard Green, Clerk

3a

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED

DECEMBER 8, 1993

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 92-4289

ELAINE DEATON, et al.

Plaintiffs-Appellants,

Vv.

CITY OF DAYTON, et al.

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: MARTIN and BOGGS, Circuit Judges; and JOINER,

Senior District Judge.*

PER CURIAM. Elaine Deaton, Constance Hurrier, Geraldine

Dzikowski, Virginia Bachelier, Kathleen Dewey, Marcella Tilford,

Estelle Quallen, and Margaret Geis appeal the dismissal of their

civil rights action brought pursuant to 42 U.S.C. § 1983. The

district court found that the plaintiffs’ claims were barred by the

two-year Ohio statute of limitations for personal injury actions. We

affirm.

* The Honorable Charles W. Joiner, Senior United States District Judge for the

Eastern District of Michigan, sitting by designation.

4a

Appendix B

On March 24, 1989, the plaintiffs were arrested while

engaging in an anti-abortion protest at the Dayton Women’s Health

Center in Kettering, Ohio. Plaintiffs allege that they were taken to

the Dayton Hurman Rehabilitation Center and subjected to

unlawful strip and body cavity searches. They subsequently filed

suit against the city of Dayton, Superintendent Billy C. Russell of

the Rehabilitation Center, and various unnamed defendants on

April 7, 1992, more than three years after the alleged incident.

In Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989)

(en banc), this Court held that civil rights actions arising in Ohio

must be brought within two years of their accrual, pursuant to Ohio

Rev. Code § 2305.10. In reaching this conclusion, the Browning

court relied on Wilson v. Garcia, 471 U.S. 261 (1985) (single state

personal injury statute of limitations must be borrowed for § 1983

purposes), and Owens v. Okure, 488 U.S. 235, 239 (1989) (if

multiple state personal injury statutes exist, court must borrow

general or residual unintentional tort statute). In Browning, 869

F.2d at 991, we equated the general, unintentional personal injury

cause of action referred to by the Supreme Court with the general,

unintentional “bodily injury” cause of action in Ohio Rev. Code

§ 305.10. This statute, as stated above, carries a two-year statute of

limitations. Plaintiffs’ cause of action accrued on March 24, 1989.

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

occurs when plaintiff knows or has reason to know of injury that is

basis of his action). As plaintiffs did not file their complaint until

more than three years after that date, their action is barred by the

statute of limitations.

Plaintiffs argue strenuously that this Court is bound by the

decision in Bojac Corp. v. Kutevac, 64 Ohio App. 3d 368 (1990),

which held that Ohio Rev. Code § 2305.09 was the applicable

general personal injury statute for civil rights actions, rather than

Sa

Appendix B

§ 2305.10. Section 2305.09 provides for a four-year statute of

limitations. Plaintiffs’ contention is without merit.

When federal courts borrow state statutes of limitations for

§ 1983 claims, it is well settled that “the problem of

characterization ‘is ultimately a question of federal law.”’ Collard

v. Kentucky Bd. of Nursing, 896 F.2d 179, 183 (6th Cir. 1990)

(quoting Wilson, 471 U.S. at 26970 (emphasis added)). The Sixth

Circuit, following Owens and Wilson, has repeatedly characterized

§ 2305.10, with its two-year statute of limitations, as the applicable

Ohio personal injury statute for § 1983 civil rights actions. See,

e.g, Browning, 869 F.2d at 990; and Farber v. Massillon Board of

Education, 917 F.2d 1391, 1400 (6th Cir. 1990), cert. denied, 498

U.S. 1082 (1991). Plaintiffs’ claims are therefore barred.

For the foregoing reasons, the decision of the district court is

affirmed.

6a

Appendix B

NO. 92-4289

ELAINE DEATON. et al. vy. CITY OF DAYTON, et al.

CHARLES W. JOINER, Senior District Judge,

concurring. I concur in the affirmance of the district court’s

judgment, recognizing that Browning v. Pendleton, 869 F.2d 989

(6th Cir. 1989) (en banc), binds this panel, and requires the

application of Ohio’s two-year statute of limitations. However,

Browning did not consider adoption of the statute advanced by

plaintiffs.' I am persuaded that plaintiffs are correct in their

contention that Ohio Rev. Code § 2305.09 is the appropriate statute

of limitations to apply to civil rights actions under 42 U.S.C.

§ 1983.

In Wilson v. Garcia, 471 U.S. 261 (1985), the Supreme Court

held that § 1983 actions are properly characterized under federal

law as tort actions for personal injuries, explaining that the

atrocities that led to the enactment of § 1983 “plainly sounded in

tort,” and that a violation of a constitutional right is “an injury to

the individual rights of the person,” thus making the tort analogy

appropriate. Jd. at 277. Based upon this characterization, the Court

affirmed the appellate court’s application of the state’s three-year

statute for “injury to the person or reputation of any person.” Jd. at

280. Recognizing that § 1983 provided a general remedy for

injuries to personal rights, the Court stated that the relative scarcity

of statutory claims when Congress enacted § 1983 in 1871 made it

“unlikely that Congress would have intended to apply the catchall

periods of limitations for statutory claims that were later enacted

by many States.” Jd. at 278.

1. The choice in Browning was between the two-year statute, Ohio Rev. Code

§ 2305.10, and the one-year statute, § 2305.11. As far as can be discerned from the

decisions of this court, the applicability of § 2305.09 was neither argued in Browning

nor decided sub silentio. See Brownina v. Pendleton, 1988 U.S. App. LEXIS 4510

(6th Cir. 1988).

eee a ie nt erence net

Ta

Appendix B

While Wilson intended to eliminate the conflict among the

lower courts in choosing the appropriate statute of limitations for

1983 actions, the decision simply narrowed the conflict to a

different arena. The next question confronted by courts was which

personal injury statute of limitations should be borrowed for

§ 1983 suits. Owens v. Okure, 488 U.S. 235 (1989), answered that

question, holding that in a state which has more than one personal

injury statute, the general or residual statute governing personal

injury actions is to be applied:

Some States have a general provision which applies to all

personal injury actions with certain specihc exceptions.

Others have a residual provision which applies to all

actions not specifically provided for, including personal

injury actions. Whichever form they take, these

provisions are easily identifiable by language or

application. Indeed, the very idea of a general or residual

statute suggests that each State would have no more than

one.

483 U.S. at 246-48 (footnotes omitted). Attempting to clarify its

earlier rejection of “catchall” statutes of limitations, the Court

stated:

Our decision today is fully consistent with Wilson’s

rejection of a state residual, or “catchall,” limitations

provision as the appropriate one for 1983 actions. 471

U.S., at 278. In Wilson, we rejected recourse to such

provisions in the first instance, a position we continue to

embrace. Courts should resort to residual statutes of

limitations only where state law provides multiple

statutes of limitations for personal injury actions and the

residual one embraces, either explicitly or by judicial

construction. unspecified personal injury actions.

8a

Appendix B

Id. at 250 n.12 (emphasis added).

Taken together, Wilson and Owens instruct that in determining

the appropriate statute of limitations to borrow for § 1983 actions,

we are to start with the state statute of limitations for personal

injury actions. If a state has more than one such statute, we are to

apply the general or residual statute. To determine which statute

falls into that category, we are to look at the express language of the

statute and the manner in which it has been construed. The statute

which embraces unspecified personal injury actions is the

appropriate statute to borrow.

The two Ohio statutes of limitations at issue are Ohio Rev.

Code § 2305.10 (already selected by this court as the appropriate

statute) and § 2305.09. They provide in pertinent part as follows:

§ 2305.10 Bodily injury or injury to personal

property.

An action for bodily injury or injuring personal property

shall be brought within two years after the cause thereof

arose.

§ 2305.09 Four years; certain torts.

Anaction for any of the following causes shall be brought

within four years after the cause thereof accrued:

(A) For trespassing upon real property;

(B) For the recovery of personal property, or for taking or

detaining it;

(C) For relief on the ground of fraud;

—

F 9a

Appendix B

(D) For an injury to the rights of the plaintiff not arising

14 on contract nor enumerated in sections 2305.10 to

2305.12, inclusive, 2305.14 and 1304.29 of the Revised

| Code.

Subsection 2305.09(D)’s reference to actions for injuries to

the rights of the plaintiff not enumerated in the designated sections

expressly and unequivocally “embraces . . . unspecified personal

| injury actions,” Owens, 488 U.S. at 250 n.12, and the statute has

been so construed by the Ohio Supreme Court. In Yeager v. Local

Union 20, 6 Ohio St. 3d 369, 453 N.E.2d 666 (1983), the Ohio

Supreme Court first recognized the tort of intentional infliction of

emotional distress, and then was required to determine whether the

plaintiff’s action was time-barred. The answer to this issue was

easily determined: because “the tort of intentional infliction of

serious emotional distress [was] not listed in any of the sections

referred to in R.C. 2305.09, the applicable statute of limitations for

this cause of action will be four years.” 453 N.E.2d at 672.

More recently, the Ohio Supreme Court was required to

decide whether an attorney’s negligence claims against a publisher

of legal forms was governed by § 2305.09 or § 2305.10. Lawyers

Cooperative Publishing Co. v. Muething, 603 N.E.2d 969 (Ohio

1992). After examining the provisions of both, the court stated that

it was required to ascertain whether the plaintiff’s claims fell

within § 2305.10. Implicit in this analysis was the court’s

recognition that § 2305.09(D) would apply only if one of the

statutes listed therein did not. Turning its focus then to § 2305.10,

the court concluded that the attorney’s cause of action for damage

to his law practice was an action for injury to personal property,

and that his negligence claim was an action for”bodily injury,”

making both claims subject to § 2305.10. Critical to the court’s

determination of the negligence claim was its recognition that no

recovery was possible unless the plaintiff first proved that he had

10a

Appendix B

feared or seen physical consequences or quantifiable physical loss,

i.e., “bodily injury” within the meaning of § 2305.10. 603 N.E.2d

at 974-75.

Both Yeager and Muething demonstrate that § 2305.09 is

Ohio’s residual statute of limitations for personal injury actions.

Based on Owens, § 2305.09 is the correct statute to borrow for civil

rights actions under 42 U.S.C. § 1983. The only court, state or

federal, to have expressly considered the residual nature of

§ 2305.09 agrees. Bojac Corp. v. Kutevac, 64 Ohio App. 3d 368,

581 N.E. 2d 625 (1990).?

Finally, the propriety of adopting § 2305.09 as the statute

applicable to § 1983 claims is in no way undercut by this court’s

decision in Collard v. Kentucky Board of Nursing, 879 F.2d 179

(6th Cir. 1990). There the court rejected a Kentucky statute

applicable to actions for injuries to the rights of plaintiffs in favor

of Kentucky’s “personal injury” statute of limitations, stating that

in the interest of simplicity and uniformity, the Supreme Court

designated “personal injury” statutes as the benchmark. /d. at 182.

Such a facile solution is not available in Ohio, where there is no

general “personal injury” statute, and the choice is between a

“personal rights” statute and a “bodily injury” statute. As the

Supreme Court recognized in Wilson, 1983 “confer[s] a general

remedy for injuries to personal rights.” 471 U.S. at 278.

For these reasons, I am persuaded that the plaintiffs are correct

in their assertion that § 2305.09 is the correct statute to borrow in

§ 1983 cases.

2. The wisdom of adopting § 2305.09 is neither enhanced by, nor detracted

from, the litany of cases cited by defendants and alluded to by the panel decision. This

court has spoken in Browning, binding subsequent panels in this court and all of the

district courts. In none of the Ohio cases relied upon by the defendants was the issue

under consideration here advanced or decided.

lla

APPENDIX C — DECISION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION

AT DAYTON FILED NOVEMBER 3, 1992

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

Case No. C-3-92-152

Magistrate Judge Michael R. Merz

ELAINE DEATON, et al.,

Plaintiff/s),

- Vg -

CITY OF DAYTON, etal.,

Defendant(s).

DECISION AND ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

This is an action by Plaintiffs to recover damages for being

subjected to allegedly unlawful strip and body cavity searches

when they were arrested for their participation in an abortion

protest in March, 1989.

Plaintiffs bring suit under both 42 U.S.C. § 1983 and Ohio

Revised Code § 2933.32, thus invoking this Court’s subject matter

jurisdiction under 28 U.S.C. § 1331, 1343, and 1367.

12a

Appendix C

Defendants assert that all claims are barred by the applicable

statutes of limitations.

Congress has adopted no statute of limitations for actions

under 42 U.S.C. § 1983, so the federal courts “borrow” state

statutes of limitations. For many years this seemingly simple rule

led to quite diverse results. To correct the confusion and injustice,

the United States Supreme Court determined in Wilson v. Garcia,

471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), that in each

State a single state statute of limitations the statute applicable to

personal injuries was the one which would be borrowed. Applying

that rule, the Sixth Circuit Court of Appeals has determined that

Ohio’s two year statute for personal injuries, Ohio Revised code

§ 2305.10, would be applicable. Browning v. Pendleton, 869 F.2d

989 (6th Cir. 1989); Farber v. Massilon Board of Education, 917 F.

2d 1391 (6th Cir. 1990), cert. denied, __ U.S. __, 115 L.Ed.2d 1019

(1991). Since the conduct of which Plaintiffs complain occurred

more than three years before the Complaint in this action was filed,

Plaintiffs’ claims under 42 U.S.C. § 1983 are time barred.

Plaintiffs acknowledge Browning and Farber, but claim the

Sixth Circuit in those cases misapplied the relevant Supreme Court

authority, Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed.

2d 594 (1989). In that case the Supreme Court determined a three-

year New York personal injury statute should be applied rather than

the one-year statute applicable to intentional torts. In so doing, the

Supreme Court implicitly overruled Mulligan v. Hazard, 777 F. 2d

340 (6th Cir. 1985), cert. denied, 476 U.S. 1174 (1986). and the

Sixth Circuit recognized that when it handed down Browning,

supra.

As Defendants point out, the Sixth Circuit has considered and

rejected proposed application of Ohio Revised Code § 2305.09, the

13a

Appendix C

four-year statute for which Plaintiffs contend. Mulligan, supra;

Hall v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505 (6th Cir.), cert.

denied sub nom., Hull v. Schuck, __ U.S. __, 115 L.Ed.2d 1080

(1991); Paladin v. Doyle, No. 90-3242, 1990 U.S. App. LEXIS

17324 (6th Cir. Sept. 27, 1990) (914 F.2d 1494 table); and

McSurley v. Hutchinson, 823 F. 2d 1002 (6th Cir. 1987), cert.

denied, 485 U.S. 934 (1988). Also, in terms of its language,

§ 2305.10 is a general personal injury statute whereas § 2305.09 is

a catch-all statute.

Plaintiffs argue, however, that this Court is bound to follow

the decision of the Trumbull County Court of Appeals in Bojac

Corp. v. Kutevac, 64 Ohio App. 3d 368 (1990), which held that

§ 2305.09 was the applicable statute for actions under § 1983 rather

than § 2305.10. This is not a situation, however, where state law

applies. In looking to state statutes of limitations under 42 U.S.C.

§ 1988, the federal courts are “borrowing” state law limitations

into federal law. Limitations questions in § 1983 actions are

unquestionably a matter of federal law. Sevier v. Turner, 742 F. 2d

262 (6th Cir. 1984). In any event, even if it were a question of state

law, this Court would be bound to follow the view of the Sixth

Circuit on what the retzvant state law is, even in the face of a state

intermediate appellate court decision to the contrary.

Plaintiffs also invoke the supplemental jurisdiction of this

Court under 28 U.S.C. § 1367 (formerly cailed pendent

jurisdiction). Defendants respond that the state law claims made

are also barred by the relevant statute of limitations, Ohio Revised

Code § 2744.04, which limits claims for improper strip or body

cavity searches to two years. Plaintiffs concede this is so with

respect to the City of Dayton itself, but claim that § 2744.04 does

not apply to claims against the individual City employees who are

Defendants and who actually conducted the searches.

l4a

Appendix C

Plaintiffs’ position in this regard is also not well taken. The

authority cited by Defendants, Bojac, supra, while not ultimately

helpful to Plaintiffs on their federal law claim, is fatal to their state

law claim. Exercising its supplemental jurisdiction, this Court is

bound to follow state law and the best evidence of that law at this

time is the Bojac decision, which holds the period of limitations in

§ 2744.04 applies to both cities and their employees.

Accordingly, the Complaint herein is ordered DISMISSED

WITH PREJUDICE in that all claims therein are barred by the

relevant statutes of limitations.

s/ Michael R. Merz

Michael R. Merz

UNITED STATES MAGISTRATE JUDGE

November 3, 1992.

15a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ELAINE DEATON, et al.,

Plaintiff(s),

- VS - Case No. C-3-92-152

CITY OF DAYTON, et al.,

Defendant(s)

JUDGMENT INA CIVIL CASE

Jury Verdict. This action came before the Court for a trial by

jury. The issues have been tried and the jury has rendered its verdict.

X Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED that Defendants’

Motion for Summary Judgment (Doc. #7) is GRANTED;

that Judgment is entered in favor of the Defendants City of Dayton

and Billy C. Russell and against the Plaintiffs Elaine Deaton,

Constance Hurrier, Geraldine Dzikowski, Virginia Bachelier,

Kathleen Dewey, Marcella Tilford, Estelle Quallen and Margaret

Geis;

and that the Complaint is DISMISSED WITH PREJUDICE.

Date November 3. 1992 Kenneth J Murphy, Clerk

s/ Karla S. Evans

By) Deputy Clerk