Académique Documents
Professionnel Documents
Culture Documents
2d 661
Jeffrey Chase, Denver, Colo. (Malcolm S. Mead, Denver, Colo., with him
on the brief) of Holme Roberts & Owen, Denver, Colo., for plaintiffappellant.
Richard E. Mahoney, Asst. Municipal Counselor, Oklahoma City, Okl.
(Walter M. Powell, Municipal Counselor, and Ronald T. McLain, Legal
Intern., Oklahoma City, Okl., with him on the brief), for defendantsappellees.
Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS,
BARRETT, DOYLE, McKAY, LOGAN and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Earnest Abbitt brought this pro se1 civil rights action under 42 U.S.C. Sec. 1983
(1976) against Oklahoma City policemen Carl Franklin and John Riley, and
two unknown members of the Oklahoma City Police Department. Abbitt
alleged that defendants used unnecessary force to arrest him and assaulted him
while he was in custody following the arrest. In their answer, defendants raised
the statute of limitations as a defense. The district court sua sponte dismissed
the action on the pleadings without notice, concluding that the suit was barred
by the applicable Oklahoma statute of limitations. We reverse.
Abbitt alleged that the acts giving rise to his claims occurred "[o]n January 4,
1980, between 8 and 12 P.M." Rec., vol. I, at 4. This suit was filed on March 5,
1982, more than two years but less than three years later. In holding that
Abbitt's suit was time-barred, the district court applied the two-year limitations
period provided by Okla.Stat. tit. 12 Sec. 95 (Third) (1981), which governs "an
action for injury to the rights of another, not arising on contract, and not
hereinafter enumerated." On appeal, Abbitt argues that, under the prior
decisions of this court, the district judge should have applied the three-year
statute applicable to an action on a liability created by statute. See id. Sec. 95
(Second).
3
5
"First,
the decision to be applied nonretroactively must establish a new principle of
law, either by overruling clear past precedent on which litigants may have relied ...
or by deciding an issue of first impression whose resolution was not clearly
foreshadowed .... Second, it has been stressed that 'we must ... weigh the merits and
demerits in each case by looking to the prior history of the rule in question, its
purpose and effect, and whether retrospective operation will further or retard its
operation.' ... Finally, we have weighed the inequity imposed by retroactive
application, for '[w]here a decision of this Court could produce substantial
inequitable results if applied retroactively, there is ample basis in our cases for
avoiding the "injustice or hardship" by a holding of nonretroactivity.' "
6
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d
296 (1971) (citations omitted).
In Shah v. Halliburton Co., 627 F.2d 1055 (10th Cir.1980), we concluded that
when a substantial question exists over which of two arguably appropriate
statutes of limitations apply to a civil rights claim, the court should apply the
longer one as a matter of policy. Id. at 1059. Although Shah involved a claim
brought under 42 U.S.C. Sec. 1981 (1976), the same rationale has been applied
by this court in a case brought pursuant to section 1983. See Brogan v. Wiggins
School District, 588 F.2d 409, 412 (10th Cir.1978). We also recognized in Shah
that a federal civil rights claim "can clearly be construed as one based upon a
liability created by statute." 627 F.2d at 1059. Moreover, in Spiegel v. School
District No. 1, 600 F.2d 264 (10th Cir.1979), we approved application of a state
statute of limitations for "actions upon a liability created by a federal statute" to
a claim brought under section 1983. Id. at 265-66. Thus our prior cases do
provide precedent supporting Abbitt's assertion on appeal that his section 1983
claim was timely under the law applicable when the suit was filed.
The second step in the Chevron analysis is to determine whether the purposes
of the new rule will be furthered or retarded by retroactive application. In this
case, as in Jackson, we cannot say that retroactive application barring Abbitt's
claim at this point in the litigation would either hamper or promote the goals
we set out in Garcia. See Jackson, 731 F.2d at 655.
10
11
We conclude that the Garcia approach should not be retroactively applied to bar
Abbitt's claim under the circumstances of this case. Even assuming that
retroactivity might further the concerns addressed in Garcia, this factor is
greatly outweighed by the substantial inequity that would result. It cannot be
said that Abbitt slept on his rights when his action was timely under the law in
effect at the time.
12