Opposition Brief — Houston v. Finnell

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

FILED

JUL 17 1997

No. 96-2020

CLERK

Supreme Gourt. U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

CLIFFORD HOUSTON,

Petitioner,

CONRAD FINNELL,

CITY OF KINGSTON, TENNESSEE, et al,

Respon dents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

(Counsel Listed Inside Front Cover)

Weshington,D.C. © THIEL PRESS ¢ (202) 328-3286

Counsel for Respondents -

ROBERT H. WATSON, JR. (BPR #1702)

WATSON, HOLLOW AND REEVES, P.L.C.

Post Office Box 131

Knoxville, Tennessee 37901-0131

(423) 637-1700

Counsel for City of Kingston, Tennessee,

Roane County Sheriff’s Department,

Kingston Police Department,

Randy Scarbrough, Gary Humphreys,

Dale Brown, Bryan Mullins,

Tony Gwinn, Jimmy Washam, and John C. Duffy.

GEOFFREY D. KRrESSIN (BPR #658)

NORTON & LUHN, P.C.

P.O. Box 2467

Knoxville, Tennessee 37901-2467

(423) 971-4600

Counsel for Conrad Finnell and

Conrad Finnell, P.C. & Associates

(t)

QUESTION PRESENTED

WHETHER THE DISTRICT COURT CORRECTLY DIS-

MISSED PETITIONER’S COMPLAINT FOR FAILURE

TO STATE A CLAIM UPON WHICH RELIEF CAN BE

GRANTED BASED UPON THE APPLICABLE ONE YEAR

STATUTE OF LIMITATIONS IN TENNESSEE CONTAINED

IN TENN. CODE ANN. § 28-3-104(A)(3), WHERE PETI-

TIONER’S COMPLAINT ON ITS FACE TOGETHER WITH

THE EXHIBITS FILED THEREWITH REFLECT THAT

THE PETITIONER’S ALLEGED CIVIL RIGHTS INJURY

OCCURRED AT THE LATEST UPON THE CONCLUSION

OF PETITIONER’S PREVIOUS CIVIL RIGHT’S ACTION

ON DECEMBER 9, 1993 AND PETITIONER DID NOT FILE

THE INSTANT COMPLAINT UNTIL OVER TWENTY-

THREE MONTHS LATER ON NOVEMBER 20, 1995.

(22)

Page

TABLE OF CONTENTS

QUESTION PRE e th 6 ak aw DENS OS ere eee i

FABRE ee OEE oc Sa oc ae 68 6 ba ee de ees ii

STATEMENT OF THE CASE ............ eee cece ceces 1

Ai; FR ES 58 5 60 0s CHER ATE RRR REEDS 1

US Ge I nk ik in ee snes oe ee eae ewe 3

REASONS FOR DENYING THE WRIT ........ccccceces 5

CORAM oo 68K 8h ee ba eB ERW ES re oa ees s 6

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Named Agents of Fed. Bureau —

of Narcotics, 403 U.S. 388, 390-97 (1971)............. 5

Butz v. Economou, 438 U.S. 478, 503-04 (1978) .......... 5

Dunr. v. State of Tennessee, 697 F.2d 121 (6th Cir.),

cert. denied sub nom, Wyllie v. Dunn, 460 U.S.

RES or gs Pe a ae ee ee ee §, 5

Friecman v. Estate of Presser, 929 F.2d 1151,

REDD Go Ga Ben Ch ka 8 eR ae ey 5

LRL Properties v. Portage Metro Hous. Auth.,

SP F.5d 1007, LEGS TOG Gs COE bobs ihe eee ee ces 5

McSurely v. Hutchison, 823 F.2d 1002, 1005 (6th

Cir. 1987), cert. denied, 485 U.S. 934 (1988)........... 5

Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.

| ay ore tor es ta an ee nen eee Ea 4,5

Wilson v. Garcia, 471-U.S. 261 (1985)... wee cee www eee 3

Statutes:

eg eer reg rr oe 1, 3, 4,5

Te CE Rs SOOO uA noice édcsos paket vives 3

Tenn. Code Ann. §28-3-104(A)(3).......-0cecceeccees i

(iii)

Rules:

Ps UR ig oat oe ears one oa ge 3,4,5

No. 96-2020

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

CLIFFORD HOUSTON,

Petitioner,

CONRAD FINNELL,

CITY OF KINGSTON, TENNESSEE, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

A. Proceedings Below.

Plaintiff filed on November 20, 1995 the instant pro

se Complaint under 42 U.S.C. §1983, (R. 1: Complaint).

On December 15, 1995, the Honorable Thomas G. Hull,

U.S. District Judge, a defendant filed pro se a Motion to

Dismiss based upon the statute of limitations. (R. 2:

Motion). On December 18, 1995, Defendants City of

Kingston, Roane County Sheriff’s Department, Randy

Scarborough, Gary Humphreys, Dale Brown, Jimmy

Washam, attorney John C. Duffy and the firm of Watson,

Hollow and Reeves, P.L.C. filed a Motion to Dismiss

asserting inter alia the statute of limitations. (R.23:

Motion to Dismiss R.24 Memorandum in Support of

Motion to Dismiss). Defendants Conrad Finnell and Con-

rad Finnell, P.C. & Associates filed a Motion to Dismiss

on January 2, 1996 (R.26: Motion). On January 4, 1996,

the district court entered an Order granting the Motion to

Dismiss filed by Judge Hull based on the statute of limi-

tations, which Order also dismissed all other Defendants

on the same basis. (R.29: Order and R. 28: Memoran-

dum Opinion). On January 5, 1996, after the dismissal

of his case, Plaintiff filed a Motion to Amend. (R. 32,

33: Motion to Amend). The district court denied the

Plaintiff’s Motion and admonished Plaintiff to review

Rule 11 before filing additional documents. (R. 34:

Memorandum and Order). Plaintiff filed on February 1,

1996 a Notice of Appeal (R. 35: Notice of Appeal). The

United States Court of Appeals for the Sixth Circuit

affirmed the district court’s order dismissing this Com-

plaint for failure to state a claim. Plaintiff/Petitioner

now seeks to have a Writ of Certiorari granted pursuant

to a Petition filed on June 17, 1997 and docketed on

June 23, 1997 in the Supreme Court of the United States.

The Respondents seek the denial of Plaintiff’s Petition

for Certiorari.

sae <<

B. Statement Of Facts.

Plaintiff Houston’s seventeen page Complaint alleged

that Respondents herein and other Defendants conspired

with each other and United States District Judge Thomas

G. Hull to adversely affect the trial of a civil rights action

(No. 3-91-402) in which Houston sued the City of King-

ston, Tennessee and others. The trial where his claims

allegedly occurred took place on December 8 and 9, 1993.

These acts of alleged conspiracy between Plaintiff’s law-

yer at the time, Conrad Finnell, the Judge, and others

took place during trial on the 8th and 9th of December,

1993 or before. The last act of the alleged conspiracy .

dealt with a release of exhibits by the U.S. Magistrate

Judge on December 9, 1993. The trial of No. 3-91-402

was concluded on December 9, 1993 and is not the sub-

ject of this appeal.

In bringing this suit, Plaintiff sued the City of King-

ston, Tennessee; officers of the City; U.S. District Judge

Thomas G. Hull; Janet Reno, the head of the FBI; his

lawyer; defendants’ lawyers, etc. He maintained that his

rights were violated under the Fourth, Fifth, Sixth,

Eighth, and Eighteenth Amendments as well as various

state laws.

The U.S. District Court Judge James Jarvis considered

the various motions filed under Rule 12(b)(6) and deter-

mined that the motions should be granted because the

action is barred by the statute of limitations.

The applicable statute of limitations for actions under

42 U.S.C. §1983 is the personal jury statute existing

under the governing state law where the action is pend-

ing. Wilson v. Garcia, 471 U.S. 261 (1985). In Tennessee,

civil rights actions are governed by the one year statute

contained in Tenn. Code Ann. §28-3-104. Dunn v. State

of Tennessee, 697 F.2d 121 (6th Cir) cert denied sub

nom Wyllte v. Dunn, 460 U.S. 1086 (1982).

Although state law provides the statute of limitations

to be applied in a $1983 action, federal law governs

when that limitations period begins to run. Sevier v.

Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute

of limitations begins running when the Plaintiff knows or

has reason to know of the injury which is the basis of his

action. Jd. at 273. A plaintiff is held to have reason

under the law to know of his injury where he should

have discovered it through the exercise of reasonable

diligence. Id.

In the instant case, the face of Houston’s Complaint

and the exhibits submitted therewith reflect that all of

the alleged conspiratorial actions and resultant alleged

injury with respect to the trial of Houston’s civil rights

action, No. 3-91-402, occurred at the December 8 thru

December 9, 1993 trial thereof. Judgment was entered

December 9, 1993. The last alleged overt act in the

alleged conspiracy was the authorization by United States

Magistrate Judge Thomas W. Phillips on December 9,

1993, for the release of contraband to the law enforce-

ment agency which introduced it at trial. Houston filed

this action on November 20, 1995. Since Houston filed

the instant Complaint nearly two years after Plaintiff’s

cause of action accrued, the Complaint reflects on its

face that it is barred by the applicable one year statute of

limitations. Accordingly, Houston’s Complaint fails to

state a claim upon which relief can be granted and should

be dismissed as to all Defendants.

As stated in the Sixth Circuit Opinion:

The district court properly dismissed this suit pur- ‘

suant to Fed.R.Civ.P. 12(b)(6) because, even when

Houston’s complaint is construed in a light most

nara

favorable to the plaintiff and even when Houston’s

factual allegations are accepted as true, Houston

undoubtedly can prove no set of facts in support

of his claim that would entitle him to relief. LRL

Properties v. Portage Metro Hous. Auth., 55 F.3d

1097, 1103 (6th Cir. 1995). Houston’s complaint

is clearly barred, for the reasons stated by the dis-

trict court. Sevier v. Turner, 742 F.2d 262, 272

(6th Cir. 1984). Houston’s cause of action accrued

at the time of the trial in December of 1993, when

Houston knew or had reason to know of the injury

that is the basis of his action. Friedman v. Estate

of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991).

The one-year state statute of limitations also applies

to Houston’s claims that were filed against the fed-

eral defendants pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388, 390-97 (1971). See Butz v. Economou,

438 U.S. 478, 503-04 (1978); McSurely v. Hutch-

tson, 823 F.2d 1002, 1005 (6th Cir. 1987), cert.

denied, 485 U.S. 934 (1988).

REASONS FOR DENYING THE WRIT

The Respondents suggest that there is no split in any

of the circuits on the issue presented in this case. The

statute of limitations for filing a civil rights action under

42 U.S.C. §1983 is one year for the State of Tennessee.

Plaintiff’s action, real or imagined, is barred by the stat-

ute of limitations and under Rule 12(b)(6) fails to state

a claim.

CONCLUSION

This case does not merit further review by this Court.

For the foregoing reasons, Houston’s Petition should be

denied.

Respectfully submitted,