text:
    Vickie SHORTERS, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.
    No. 85 C 6078.
    United States District Court, N.D. Illinois, E.D.
    Sept. 6, 1985.
    Kenneth N. Flaxman, Chicago, 111., for plaintiffs.
    Robert W. Fioretti, Senior Atty. Supervisor, Ira M. Kleinmuntz, Ass’t Corp. Counsel, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On July 2, 1985 Vickie Shorters (“Shorters”) and Delores Clark (“Clark”) sued the City of Chicago (“City”) and Chicago police officer George Weir (“Weir”) under 42 U.S.C. § 1983 (“Section 1983”), seeking damages for an alleged violation of plaintiffs’ civil rights in August 1982. Defendants then moved under Fed.R.Civ.P. (“Rule”) 12(b)(6) to dismiss plaintiffs’ Complaint, in part on the grounds it is barred by the applicable statute of limitations. For the reasons stated in this memorandum opinion and order, the Complaint survives that motion.

Facts

In the early morning hours of August 5, 1982 plaintiffs, who were riding in an automobile owned by Clark, stopped to purchase hamburgers at a White Castle restaurant at 111th and State Streets in Chicago. Shorters entered the restaurant while Clark remained in the car. While waiting for Shorters to return, Clark was approached by a restaurant security guard who told her she was parked in a restricted area and would have to move her car. After some discussion Clark agreed to do so.

As Clark was moving the car Weir arrived on the scene, ordered Clark to stop the car and asked to see her license. When Clark produced her license, Weir reached inside the car, took the license from her and also removed the keys from the ignition switch. Weir then opened the car door, removed Clark from the car and placed her in his squad car, in the meantime subjecting her to verbal abuse. Shortly thereafter Shorters emerged from the restaurant and approached Weir to ask about what had happened. Weir responded “Do you want to go to jail too?,” twisted Shorters’s arm behind her back and placed her under arrest. Clark was later charged with battery, while both Shorters and Clark were charged with disorderly conduct. After plaintiffs had appeared several times in the Circuit Court of Cook County all charges against them were dropped.

Statute of Limitations

Defendants’ motion to dismiss invokes the Supreme Court’s definitive ruling in Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Wilson, 105 S.Ct. at 1949 characterizes Section 1983 claims collectively as “[gjeneral personal injury actions, sounding in tort,” and id. at 1947 mandates the selection, “in each State, [of] the one most appropriate statute of limitations for all § 1983 claims.” That statute in Illinois, defendants argue, is Ill. Rev.Stat. ch. 110, ¶ 13-202 (“Section 13-202”):

Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation ... shall be commenced within two years next after the cause of action accrued____

Because the events giving rise to plaintiffs’ claim occurred in August 1982, defendants claim the July 1985 Complaint was filed out of time.

Plaintiffs counter with two arguments:

1. Under the reasoning of Wilson, the Illinois statute of limitations most appropriate for Section 1983 claims is not Section 13-202 but rather Ill.Rev.Stat. ch. 110, ¶13-205 (“Section 13-205”), which prescribes a five-year limitations period for “all civil actions not otherwise provided for.”
2. Even if Wilson were instead to cause Section 13-202 to supply the applicable limitations period, plaintiffs should be afforded a reasonable time after Wilson to file actions (a) that would have been timely under what had been thought a five-year limitations period (adopted by our Court of Appeals in Beard v. Robinson, 563 F.2d 331 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978)) but (b) that would become untimely under a post-Wilson two-year period.

This opinion considers those arguments in turn.

1. Applicable Illinois Limitations Period

Wilson teaches a twofold inquiry:

1. a single characterization of all Section 1983 claims — for which purpose a federal standard applies; and
2. selection of a single state limitations statute — for which purpose state law necessarily gives content to the state’s own statutes.

Because of the double aspect of that inquiry, and because of the two quite different sources that must be drawn upon, special care must be taken to avoid the trap of assuming the same or similar words necessarily have the same meaning in the two contexts — they may, of course, but they need not.

This opinion turns then to the first question: the precise meaning of the Wilson characterization. Wilson, 105 S.Ct. at 1948 speaks of Section 1983 “as conferring a general remedy for injuries to personal rights.” On the following page it refers to “all § 1983 actions as involving claims for personal injuries,” to “[gjeneral personal injury actions, sounding in tort” and to “§ 1983 claims [as] best characterized as personal injury actions.” Certainly Justice Stevens (speaking for the Court, over a single dissent) was not shifting the intended meaning of his language in such a brief compass. Slight variations in locution do not import any change in substance.

Because this Court is already aware of what the second-step (state-law) inquiry later in this opinion will bring, it notes Wilson gave several strong clues as to what the shorthand terms “injuries to personal rights” and “personal injuries” embrace. Wilson, id. at 1948 said:

As we have noted, however, the § 1983 remedy encompasses a broad range of potential tort analogies, from injuries to property to infringements of individual liberty.

It went on (id.) (emphasis in original):

The Constitution’s command is that all “persons ” shall be accorded the full privileges of citizenship; no person shall be deprived of life, liberty, or property without due process of law or be denied the equal protection of the laws. A violation of that command is an injury to the individual rights of the person.

And it quoted with favor (id.) from Almond v. Kent, 459 F.2d 200, 204 (4th Cir. 1972):

In essence, § 1983 creates a cause of action where there has been injury, under color of state law, to the person or to the constitutional or federal statutory rights which emanate from or are guaranteed to the person. In the broad sense, every cause of action under § 1983 which is well-founded results from “personal injuries.”

Finally it said (id. at 1948-49) (footnotes omitted):

The rights enforceable under § 1983 include those guaranteed by the Federal Government in the Fourteenth Amendment: that every person within the United States is entitled to equal protection of the laws and to those “fundamental principles of liberty and justice” that are contained in the Bill of Rights and “lie at the base of all our civil and political institutions.” These guarantees of liberty are among the rights possessed by every individual in a civilized society, and not privileges extended to the people by the legislature.

What all this means, of course, is that the scope of Section 1983 is not at all limited to the whippings, lynchings and worse (see id. at 1947) that were the “specific historical catalyst” for its 1871 enactment. Such direct physical injury does not mark the outer boundaries of Section 1983 claims. Wilson plainly teaches its references to “personal injury” and “injuries to personal rights” encompass not only such injuries (of which the sheriffs racially-motivated fatal beating of a prisoner in the seminal case of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) is the archetype) but also the far wider range of harms that this and all other federal courts regularly treat with in Section 1983 litigation.

That leads then to the second level of inquiry: What Illinois limitations statute provides the best fit to the total set of federal harms encompassed in Section 1983? And once again, the search is not simply for the Illinois statute that sounds most like the shorthand phrases Wilson used to describe the broad range of federal torts, for the test must be a commonality of substantive content and not mere similarity of language.

There is reason to emphasize that difference in the nature of the quest. In purely superficial terms Section 13-202, with its reference to “injury to the person,” has a deceptive similarity to Wilson’s “personal injury” (or perhaps even Wilson’s “injuries to personal rights”). But it is crystal clear Illinois courts (which are of course the masters of the meaning of state statutes) have never given the phrase “injury to the person” a comparably broad scope.

Almost exactly a century ago Bassett v. Bassett, 20 Ill.App. 543, 547-48 (4th Dist. 1886) dealt with a wife’s damages claim against her husband’s father for having enticed her husband to separate himself from her. Bassett defined the limited reach of the direct precursor to Section 13-202:

It is next objected that the court erred in sustaining the demurrer to the Statute of Limitations of two years. The section of the statute upon which the plea is based provides that “Actions for damages for an injury to the person, or for false imprisonment, malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years.” Applying the familiar principle that the statute does not bar a cause of action unless it comes clearly within its provisions, we are of the opinion that the section relied upon is not broad enough to include the present case. The cause of action for an injury to the person which is barred in two years is limited to a direct physical injury to the person. If it were intended to include all injuries to personal and relative rights, the legislature would not have considered it necessary in the same act to provide specially for a period of time in which an action should be brought for many of the injuries to such rights. Thus actions to recover damages for slander and libel, false imprisonment, malicious prosecution, abduction, seduction and criminal conversation, are expressly provided for, showing the clear intent of the legislature to limit “injuries to the person” to those of a physical nature.

Bassett concluded the plaintiff’s action was a “civil action not otherwise provided for” and was therefore covered by the residual five-year limitations period under the predecessor to Section 13-205.

That reading has persisted to the present day. Just a decade ago Mitchell v. White Motor Co., 58 Ill.2d 159, 161, 317 N.E.2d 505, 506 (1974) (emphasis in original) upheld a line of Illinois Appellate Court cases (beginning with Bassett) that had applied the residual five-year limitations period in cases:

where a plaintiffs cause of action arises from a personal injury to a third person but does not involve a direct physical injury to the person of the plaintiff....

Mitchell (id. at 162, 317 N.E.2d at 506-07) acknowledged such consequential damage actions are, in many jurisdictions, encompassed for limitations purposes in the term “for injury to the person” or “for personal injury.” But Mitchell went on to explain the Illinois rule was to the contrary (id. at 162-63, 317 N.E.2d at 507):

[O]ur appellate courts have held that this language [“injury to the person”] in our limitation statute applies only to direct personal injury to the plaintiff. Our legislature has long acquiesced in this interpretation of this language. We find the inaction of our legislature in the face of the judicial construction which has been given to the meaning of the statute more persuasive than the decisions from the other jurisdictions____ We think that it is the nature of the plaintiffs injury rather than the nature of the facts from which the claim arises which should determine what limitations period should apply. Where, as here, plaintiff has suffered no direct physical or mental injury the two-year statute is inapplicable.

Three years later in 1977 the specific holding of Mitchell (but not the principle just quoted) was overruled by the predecessor to Ill.Rev.Stat. ch. 110, 1113-203 (“Section 13-203”):

Actions for damages for loss of consortium or other actions deriving from injury to the person of another ... shall be commenced within the same period of time as actions for damages for injury to such other person.

That limited legislative action betokens continued acquiescence in the Illinois courts’ general construction of “injury to the person” as used in Section 13-202, just as it reflects a specific legislative choice to change that rule for the specific kind of action at issue in Mitchell. Section 13-203 leaves untouched (or more accurately, really fortifies) the judicial construction of Section 13-202 as announced in Bassett, reconfirmed over the next nine decades and given Illinois Supreme Court sanction in Mitchell.

That case-law and statutory history makes two things plain:

1. Illinois courts would apply the Section 13-202 two-year limitations period to any action for direct physical (or perhaps also “mental”) injury encompassed by a Section 1983 claim.
2. But those same courts would look elsewhere for a limitations period to apply to the many kinds of violations of personal rights asserted in the host of Section 1983 cases that involve no such direct physical (or mental) injuries.

Such a limited utility of the two-year statute is not enough to satisfy Wilson, which requires this Court to identify a single Illinois limitations period for all Section 1983 claims (105 S.Ct. at 1947) (footnote omitted):

Although the need for national uniformity “has not been held to warrant the displacement of state statutes of limitations for civil rights actions,” Board of Regents v. Tomanio, 446 U.S. [478] at 489, 100 S.Ct. [1790], at 1797 [64 L.Ed.2d 440 (1980) ], uniformity within each State is entirely consistent with the borrowing principle contained in § 1988. We conclude that the statute is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims. The federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach.

In light of the confined scope of the Section 13-202 concept of “injury to the person,” as contrasted with Wilson’s much broader concept of “injury to personal rights” or “personal injury,” this Court cannot conclude Section 13-202 supplies “the one most appropriate statute of limitations for all § 1983 claims.” And no other specific Illinois limitations provision comes any closer to fitting the bill. With the possibility of dividing a claim into its component parts for statute of limitations purposes having been foreclosed by Wilson, this Court has determined the only satisfactory (and permissible) response to the Wilson directive is to select, as the single statute of limitations most appropriate for all Section 1983 claims, the Section 13-205 category of “all civil actions not otherwise provided for” — a five-year statute.

This careful examination of Illinois law in light of the holding and reasoning of Wilson has thus led to the conclusion “the one most appropriate statute of limitations for all § 1983 claims” in Illinois is Section 13-205, prescribing the same five-year period federal courts in Illinois have previously applied to such claims. From this it follows Shorters’ and Clark’s Complaint, filed less than three years after the occurrence of the events giving rise to their claims, was timely filed.

2. Reasonable Period To File Post-Wilson

What has already been said suffices to defeat defendants’ statute of limitations defense. That makes dictum any discussion of plaintiffs’ second argument. Nonetheless, against the possibility of a future appeal, it may be worth taking a brief look at that alternative ground for denial of defendants’ motion.

Plaintiffs’ second contention assumes arguendo Wilson requires application of the Paragraph 13-202 limitations period. That assumption then requires the examination of two questions:

1. Whether the two-year limitations period is to be applied retroactively to cases that were timely filed before Wilson but remain undecided.
2. Whether a Complaint filed (a) shortly after Wilson and (b) more than two years after the cause of action accrued is barred, even though it would have been timely filed under the pre-existing limitations rule.

Obviously an affirmative answer to the first of those questions moots the second. Conversely, a negative answer to the first leaves open the second.

True enough, plaintiffs have not addressed the first question. Nonetheless defendants implicitly concede a “no” answer on the authority of Jackson v. City of Bloomfield, 731 F.2d 652, 655 (10th Cir. 1984) (decided en banc the same day the Court of Appeals decided Wilson, 731 F.2d 640) and its application of the factors bearing on nonretroactivity set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971). But the Jackson analysis, focusing (as it had to) on New Mexico and Tenth Circuit law, lacks direct bearing on cases arising in the context of Illinois and Seventh Circuit law.

In the latter respect, both Judge Decker’s July 23, 1985 decision in Moore v. Floro, at 330-334 and Judge Sharp’s earlier decision in Winston v. Sanders, 610 F.Supp. at 178-79 apply the Chevron Oil factors in light of Beard and the clear five-year limitations rule .it had prescribed in Illinois for nearly eight years before Wilson. Each of Moore and Winston concluded — soundly in this Court’s view — a Wilson-mandated reduction of the limitations period for Illinois-based Section 1983 actions does not retroactively bar claims that had been timely when filed under Beard.

That then poses the second question: whether a complaint filed after Wilson was decided, yet outside the two-year limitations period, must be measured by the Wilson-derived rule. For that purpose the Chevron Oil analysis underlying the holdings of Winston and Moore might well be repeated. Here, as in those cases:

1. Plaintiffs are likely to have relied on the clear rule set out by Beard.
2. Nonretroactivity would not seriously jeopardize the policies of uniformity, certainty and minimization of unnecessary litigation, while it would serve the broad remedial purposes of Section 1983.
3. Retroactive application would impose a burden of inequity on plaintiffs, particularly given the prior solidity of the Beard rule.

That Chevron Oil analysis necessarily assumes plaintiffs filed suit with reasonable promptness after Wilson, for neither the efficiency considerations underlying Wilson nor the equities are well served by allowing a plaintiff simply to ignore an otherwise valid change in the law.

In a sense, though, such a detailed Chevron Oil approach is really subsumed within the rule succinctly stated by the Supreme Court over 100 years ago in Terry v. An derson, 5 Otto 628, 95 U.S. 628, 632-33, 24 L.Ed. 365 (1877) (citations omitted) and recently cited approvingly and quoted in part in Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791 n. 21, 70 L.Ed.2d 738 (1982):

This court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect____ It is difficult to see why, if the legislature may prescribe a limitation where none existed before, it may not change one which has already been established.
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In all such cases, the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable.

See also D'Andrea v. Montgomery Ward & Co., 571 F.2d 403, 404 (7th Cir.1978). Nor should the principle be different because a court rather than a legislature has changed the limitations period. At least absent an express and reasoned repudiation, the judiciary as much as the legislature is bound to respect the due process concerns underlying the Terry rule.

Not surprisingly, Illinois too adheres to the same rule. Meegan v. Village of Tinley Park, 52 Ill.2d 354, 359, 288 N.E.2d 423, 426 (1972) (recently reaffirmed in Moore v. Jackson Park Hospital, 95 Ill.2d 223, 230, 69 Ill.Dec. 191, 193, 447 N.E.2d 408, 410 (1983)) held:

So long as a reasonable time exists for the presentation of a claim after enactment of a statute shortening the time in which suit may be brought, the legislature may validly shorten the time as to pre-existing causes of action.

Even without reference to Terry, that same Illinois rule — requiring a reasonable time after the shortening of a limitations period for those who relied on the former law to file their actions — is in the nature of a tolling provision. Such tolling rules are considered part and parcel of the state statute of limitations for Section 1983 purposes under Chardon v. Soto, 462 U.S. 650, 656-57, 662, 103 S.Ct. 2611, 2615-16, 2619, 77 L.Ed.2d 74 (1983), reaffirming Board of Regents v. Tomanio, 446 U.S. 478, 480, 100 S.Ct. 1790, 1793, 64 L.Ed.2d 440 (1980).

Whether the issue is viewed in due process terms under Terry or in tolling terms under Illinois law, the only remaining question is what constitutes a “reasonable” grace period for filing suit. In either case it seems appropriate in the first instance to look to state law for the measure of reasonableness. Where as here state law supplies the limitations period, federal courts would appear better advised also to look to state law as to changes in limitation periods — assuming that law is at least minimally satisfactory in Terry terms — rather than to establish a distinct and unnecessary federal rule. And Nergenah v. Norfolk & Western Railway Co., 81 Ill.App.3d 866, 868, 37 Ill.Dec. 61, 63, 401 N.E.2d 1154, 1156 (1st Dist.1980) provides a convenient summary in that regard:

In Anderson v. Wagner (1978), 61 Ill. App.3d 822, 19 Ill.Dec. 190, 378 N.E.2d 805, an eight-month period for filing suit after an amendment’s effective date was held to be reasonable. Anderson was based on Carlin v. Peerless Gas Light Co. (1918), 283 Ill. 142, 119 N.E. 66, wherein a nine-month period was found to be reasonable. Here, the action for loss of consortium was filed approximately 7V2 months after the effective date of the amendment of the statute of limitations. On the basis of Anderson and Carlin, supra, we find that Addie Nergenah’s action was filed within a reasonable time.

Shorters and Clark initiated this lawsuit 75 days after Wilson was decided. They plainly acted within a reasonable time in Nergenah terms. Even if Wilson were to require this Court to assess the timeliness of the Complaint under Section 13-202 rather than Section 13-205, plaintiffs’ having filed within a reasonable time after Wilson would also defeat defendants’ limitations defense.

Conclusion

Defendants’ motion to dismiss the Complaint as untimely is denied. Plaintiffs are ordered to file a memorandum addressing the remaining elements of defendants’ Rule 12(b)(6) motion (see n. 1) on or before September 20, 1985. Defendants’ reply memorandum will be due September 30, 1985. This case is set for a status hearing November 12, 1985 at 9:15 a.m.

      . City’s motion also sought its dismissal under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978) and Strauss v. City of Chicago, 760 F.2d 765 (7th Cir.1985). Because the statute of limitations defense had the potential to defeat the entire Complaint, this Court directed the parties to limit their initial briefing to that issue. Consequently City's Monell-based arguments remain to be briefed and decided.

      . As always with respect to a motion to dismiss, the well-pleaded factual allegations of the Complaint are taken as true, with all reasonable factual inferences drawn in plaintiffs’ favor. Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984). That approach of course involves no actual findings of fact.

      . As the text of this opinion later reflects, that is one of several characterizations, each a bit different from the others.

      . As this Court has noted in other opinions, the Illinois General Assembly uses the "§ " designation in its legislative enactments (here the 1982 Code of Civil Procedure). Though the SmithHurd publishers of the Illinois Revised Statutes have recently changed from a “§ ” to a "¶" symbol (hence the full statutory citation form in the text), this Court will adhere to the General Assembly’s continuing usage (by spelling out "Section”) when this opinion speaks of individual provisions without including their chapter references.

      . Parenthetically it may be observed "injury to the person" in Section 13-202 does not include injury to a person’s reputation or privacy interests. Such actions are subject to the one-year limitations period set out in Ill.Rev.Stat. ch. 110, 1J13-201.

      . Illinois adheres to the principle that a statute of limitations bars only actions coming clearly within its terms. See Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 16 Ill.App.3d 709, 712-13, 306 N.E.2d 549, 552 (1st Dist.1973), rev'd in part on other grounds, 61 Ill.2d 129, 334 N.E.2d 160 (1975).

      . This result is substantially of a piece with that of Mismash v. Murray City, 730 F.2d 1366 (10th Cir.1984) (en banc), cert. denied, -U.S.-, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985). Mismash was decided by the Court of Appeals the same day as Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984) (en banc), which was in turn affirmed by the Wilson v. Garcia Supreme Court decision that has been the focus of this opinion. Mismash, 730 F.2d at 1367 held:
      No Utah statute of limitations is expressly applicable to actions for injury to the rights of another. Under Utah law, personal torts other than those set forth in Utah Code Ann. § 78-12-29(4) (1953) are governed by the four year statute of limitations which applies to "[a]n action for relief not otherwise provided for by law," id. § 78-12-25(2). See, e.g., Matheson v. Pearson, 619 P.2d 321 (Utah 1980). Accordingly, we conclude that all section 1983 claims brought in federal court in Utah are subject to the four-year limitations period provided in Utah Code Ann. § 78-12-25. Under this statute, Mismash’s suit was timely filed and the judgment for defendants must be reversed.
      Utah Code Ann § 78-12-29(4) sets a one-year limitations period applicable to actions for libel, slander, assault, battery, false imprisonment or seduction. It is worth noting the petition for certiorari in Mismash was held under consideration while Wilson was awaiting decision, and it was then denied April 22, 1985, five days after the Supreme Court decided Wilson. Though we are taught no inference is to be drawn from denials of certiorari, under the circumstances (where the Supreme Court did not vacate and remand Mismash for reconsideration in light of Wilson, as it often does in comparable situations) it seems fair to conclude the Court viewed Mismash as consistent with Wilson.

      . Several post-Miron cases have assumed without discussion that the two-year Illinois statute applies to Section 1983 claims (just as this Court would likely have done at first blush, seduced by the surface similarity between the Wilson language and that of Section 13-202). See, e.g., Moore v. Floro, 614 F.Supp. 328, 330 n. 1 (N.D. Ill.1985); West v. County of Will, No. 84 C 7540, slip op. at 3 (N.D.Ill. June 6, 1985); Winston v. Sanders, 610 F.Supp. 176, 177 (C.D.Ill.1985). Our Court of Appeals has only mentioned the issue in passing while adopting a six-month limitations period in an altogether different context. Smith v. City of Chicago, 769 F.2d 408, 411 (7th Cir.1985). Bailey v. Faulkner, 765 F.2d 102 (7th Cir.1985) was decided under Indiana law and made no reference to Illinois limitations law.

      . We seem to have come full circle. It will be recalled that in Beard v. Robinson our Court of Appeals, though indulging a very different line of analysis (now rejected by Wilson, 105 S.Ct. at 1948), had arrived at the same destination: the five-year statute now embodied in Section 13-205. Beard had considered Section 1983 actions to be akin to statutory actions and hence “civil actions not otherwise provided for.”

      . Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355-56 (citations omitted) identified three factors bearing on nonretroactivity:
      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 "[wjhere 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.”

      . For much the same reason Smith v. City of Pittsburgh, 764 F.2d 188, 194-97 (3d Cir. 1985) is really not helpful here. In reaching a result opposite to that in Jackson, Smith emphasized the first Chevron Oil factor and the fact that Third Circuit limitations law for Section 1983 purposes was unsettled when plaintiff had filed his complaint. Beard of course had created a far different legal climate in this Circuit.


source: Caselaw Access Project

author: H. FRANKLIN WATERS, Chief Judge.

license: Public Domain

text:
    RICHARDSON OIL COMPANY, Plaintiff, v. Benny F. COOK and Carroll Truck Lines, a Division of Bobby Kitchens, Inc., Defendants.
    Civ. No. 83-3136.
    United States District Court, W.D. Arkansas, Harrison Division.
    Sept. 6, 1985.
    Rex M. Terry of Hardin, Jesson & Dawson, Fort Smith, Ark., for plaintiff.
    Jim Tilley of Huekabay, Munson, Rowlett & Tilley, Little Rock, Ark., for Benny F. Cook.
    Alston Jennings, Jr. of Wright, Lindsey & Jennings, Little Rock, Ark., for Carroll Truck Lines.
   MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

This action is currently before the court on a motion for summary judgment filed by plaintiff, Richardson Oil Company, an Arkansas corporation with its principal place of business in Harrison, Arkansas. Defendant, Benny F. Cook, is a citizen of Mississippi and Carroll Truck Lines is a Mississippi corporation with its principal place of business in Jackson, Mississippi.

I.

This action arose out of a motor vehicle accident that occurred on Interstate 40 near Russellville, Arkansas, on June 21, 1982. Defendant Cook had parked his truck on the shoulder of the interstate and was attempting to move back on to the highway when his truck was struck from behind by a truck driven by George A. Greenhaw. The truck driven by Mr. Green-haw was loaded with gasoline and caught fire; Mr. Greenhaw died in the ensuing fire. Mr. Greenhaw was at the time of the accident an employee of the plaintiff in this case, Richardson Oil Company.

On December 9, 1983, Richardson brought this action to recover damages for the loss of its tractor-trailer rig and gasoline which it alleged were destroyed in the fire. In the meantime, Billie Greenhaw, as Mr. Greenhaw’s widow and administratrix of his estate, filed a separate action in state court against the same defendants sued in this cause. Before trial could be had in the federal action, the state action was tried to a jury on February 26 and 27, 1985. In response to interrogatories the jury found that Mr. Cook and Mr. Greenhaw were both guilty of negligence and apportioned 51% of the responsibility to Mr. Cook and 49% to Mr. Greenhaw. A judgment to that effect was entered in the Circuit Court of Pope County, Arkansas. On July 8, 1985, Mrs. Greenhaw filed her notice of appeal to the Arkansas Court of Appeals in circuit court.

Shortly after the entry of judgment in state court, Richardson filed a motion for summary judgment in this court. Plaintiff contends that because the defendants in this action are the same defendants found to be primarily liable in state court, they are collaterally estopped from litigating their liability in federal court against a different plaintiff. The defendants argue that the doctrine of collateral estoppel should not be applied in this case because there is no mutuality of estoppel, because plaintiff seeks to assert collateral estoppel in an “offensive” manner, and because the judgment which plaintiff claims should have preclusive effect is on appeal to the Arkansas Court of Appeals.

II.

Mutuality of estoppel refers to the principle, once widely held, that one party to an action may not be bound by a prior adjudication unless both parties are bound. The practical effect of the requirement of mutuality of estoppel is that a person who was not a party to a prior action may not take advantage of the previous litigation because, constitutionally, he himself may not be bound by it. The shortcomings of the mutuality doctrine have been often noted: “By failing to recognize the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). In both Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), and Parklane Hosiery, supra, the Supreme Court expanded the limits of collateral estoppel at the expense of the mutuality doctrine.

In Arkansas, courts have required mutuality of estoppel as a general rule. Davis, Administratrix v. Perryman, 225 Ark. 963, 286 S.W.2d 844 (1956); Hogan v. Bright, 214 Ark. 691, 218 S.W.2d 80 (1949). However, in Davidson v. Lonoke Production Credit Ass’n, 695 F.2d 1115 (8th Cir. 1982), Judge Arnold squarely addressed the question of whether Arkansas courts would, as a matter of course, necessarily require mutuality as a prerequisite to giving a preclusive effect to previous judgment. In Davidson the trustee of a bankruptcy estate brought an action in bankruptcy court against the PCA, challenging its status as a secured creditor on the ground that the description of collateral in its security agreement and financing statement was legally insufficient. Secondarily, the trustee also argued that the PCA was precluded from litigating its status in bankruptcy court by an earlier adjudication of the Arkansas Supreme Court. The prior judgment had been the result of a garnishment action filed in state circuit court by a third party; the PCA had answered the action, alleging that it had perfected a security interest in the crops at issue by the same security agreement relied upon in bankruptcy court. The circuit court held that the crops had not been properly identified and that the PCA’s security interest was not perfected. On appeal the Arkansas Supreme Court affirmed the circuit court in an unpublished opinion. The trustee, who had not been a party to the garnishment action, contended that the adverse adjudication of the PCA’s status should collaterally estop it from litigating that issue again. The bankruptcy court did not agree.

Judge Arnold’s review of Arkansas cases led him to the opposite conclusion, however:

First, the Arkansas Supreme Court is not wedded to the notion of mutuality of estoppel as a prerequisite to application of res judicata principles. Second, the notion of collateral estoppel or issue preclusion has been dealt with functionally by the Court and often subsumed under the rubric of res judicata. These factors, as well as the Arkansas Supreme Court’s frequent citation to the Restatement of Judgments as a source of authority, lead us to the belief that the Arkansas courts would not ignore the significant legal doctrines developed most fully in Blonder-Tongue Laboratories v. University Foundation, Parklane Hosiery v. Shore, and the new Restatement (Second) of Judgments § 29 (1982).

Davidson, supra, at 1121 (footnotes and citations omitted). We agree that the Arkansas courts, based upon past decisions, would not mechanically require mutuality under all fact situations. We also believe that if collateral estoppel is appropriate in the present case, its application would not be denied because there could not be mutuality of estoppel.

III.

The defendants also contend that plaintiff should not be permitted to use the prior judgment “offensively” to prevent litigation on the issue of the defendants’ liability, if any, to Richardson. The use of collateral estoppel is offensive when a plaintiff seeks to preclude a defendant from litigating again an issue previously litigated unsuccessfully by the defendant against another party. Parklane Hosiery Co., supra, 439 U.S. at 326 n. 4, 99 S.Ct. at 649 n. 4.

In Parklane the Supreme Court recognized that the offensive use of collateral estoppel does not promote judicial economy in the same manner that defensive use would. However, the Court chose not to broadly rule against any use of collateral estoppel in an offensive context. Instead, the Court held as a general rule in federal courts that “where a plaintiff could have easily joined in the earlier action or where, ... for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.” Parklane Hosiery Co., supra, at 331, 99 S.Ct. at 651-52. The doctrine developed in Blonder-Tongue and Parklane has been incorporated into the Restatement (Second) of Judgments § 29, which provides in part:

A party precluded from relitigating an issue with an opposing party, in accordance with §§ 27 and 28, is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue. The circumstances to which consideration should be given include ...
(3) The person seeking to invoke favorable preclusion ... could have effected joinder in the first action between himself and his present adversary.

Based upon our review of the record before the court, we find nothing which suggests that Richardson could not have easily joined in the state court action pursuant to Rule 24, Fed.R.Civ.P. Rule 24(b)(2) provides: “Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.” Plaintiff’s own brief acknowledges that the present cause of action depends upon a determination of “precisely the same facts” involved in the prior action and that many of the same witnesses will testify in this case if it goes to trial. Furthermore, plaintiff has not pointed to any facts or circumstances which would lead us to believe that it could not have easily intervened in the prior action had it chosen to do so. All of the above strongly suggests to the court that this is a case in which plaintiff should not be allowed to take advantage of an offensive use of collateral estoppel.

We also find support for this conclusion in Davidson. Procedurally, Davidson appears to be a case where an offensive use of collateral estoppel was approved in as much as the plaintiff trustee successfully prevented the defendant PCA from relitigating its status based upon a previous ruling against it. However, Judge Arnold specifically noted that neither the state action nor the bankruptcy action sought to establish PCA’s liability, in the narrow sense. In this case, it is precisely on the narrow issue of defendants’ liability that plaintiff seeks to apply collateral estoppel.

Based upon all of the foregoing, we conclude that the judgment entered in the Circuit Court of Pope County, Arkansas, on July 3, 1985, should not be given preclusive effect on the issue of the defendants’ liability in the present case. We specifically do not reach the issue of whether a judgment on appeal to an appellate court may be a proper basis for collateral estoppel. Plaintiff’s motion for a summary judgment should be denied. A separate order to that effect will be entered concurrently with this memorandum opinion.

      . The judgment was originally entered on May 25, 1985. The circuit judge subsequently set aside the judgment on the motion of the plaintiff, but reentered an identical judgment on July 3, 1985.

      . See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971).

      . Our independent review and analysis of the appropriate Arkansas cases leads us to favor the rationale proposed by Judge Arnold rather than that advanced by plaintiff. Plaintiff cites Hastings v. Rose Courts, 237 Ark. 426, 373 S.W.2d 583 (1963), and Wells v. Ark. Public Service Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981), in support of its contention that "the requirement of complete mutuality as a condition to the application of collateral estoppel has been eliminated in Arkansas law at least since 1963.” Our reading of Hastings, at least, convinces us that it may very well stand for the opposite principle. Therefore, we favor the reasoning of Davidson in as much as we do believe it is consistent with Arkansas cases on collateral estoppel and res judicata.

      . Conversely, the defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from litigating in a subsequent action an issue that it litigated unsuccessfully against another defendant in another action. Parklane Hosiery Co., supra, 439 U.S. at 326 n. 4, 99 S.Ct. at 649 n. 4.


author: JAMES LAWRENCE KING, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. ONE (1) 1984 # 1 BOAT MFG. LOBSTER VESSEL KNOWN AS M/V SEA POWER OFFICIAL DOCUMENTATION NO. 675336 together with its tackle, apparel and equipment, Defendant.
    No. 85-0747 Civ.
    United States District Court, S.D. Florida.
    Sept. 7, 1985.

      David Lichter, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Jorge Sibila, Miami, Fla., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

JAMES LAWRENCE KING, Chief Judge.

THIS CAUSE came before this Court for a non-jury trial on September 3, 1984. Plaintiff, United States of America, seeks civil forfeiture of the defendant vessel, pursuant to 21 U.S.C. § 881, 49 U.S.C. § 781, 19 U.S.C. §§ 1595a(a) and 1703.

The Court, having heard the testimony of the witnesses, having considered the evidence and having made determinations of credibility of the witnesses presented, enters the following findings of fact and conclusions of law.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355.

PROCEDURAL BACKGROUND

Plaintiff, United States of America, filed a Complaint for Forfeiture In Rem, alleging that on October 3, 1984, officers of the United States Customs Service seized the defendant motor vessel; that said motor vessel was used or was intended to be used to transport or to facilitate the transportation, receipt, possession or concealment of marijuana into the United States, and that a secret compartment for the purpose of smuggling was built into the defendant vessel.

Claimant, Alberto Ñapóles, filed his Answer to Complaint for Forfeiture In Rem, alleging an interest in the defendant vessel as its lawful owner. Claimant denied any knowledge of the defendant vessel’s alleged illegal activities and denied that a secret compartment had been built into the vessel.

FINDINGS OF FACT

1. On September 17, 1984, the SEA POWER was placed on lookout by Customs Officer Harris, following information obtained from a previously reliable and accurate confidential informant that the vessel had departed Key West, Florida, to Jamaica, to pick up a load of marijuana. The informant also stated that the SEA POWER would return to the southeastern United States.

2. On October 3, 1984, Florida Marine Patrol Officers Frankel and Sharp — who knew that vessel was on lookout and who had previously seen the SEA POWER under construction prior to its departure— spotted the vessel being lifted out of the water at the Peninsula Boat Yard on Stock Island at Key West, Florida.

3. Officers Frankel and Sharp contacted the Key West Customs Tactical Enforcement Division Office and notified it of their observations. That office then dispatched Special Customs Patrol Officer Cooper and Customs Patrol Officer Gagliardi to the boat yard.

4. Those officers, who had between them numerous years of marine experience, including experience with vessel maintenance and construction, observed the vessel’s bottom to be clear of bottom growth and free of any outward appearance of structural damage to the keel, propeller, rudder, shaft or any other outside portion of the vessel. Through Cooper, Gagliardi’s and Frankel’s past boating experience, they believed that something was amiss, because there was no apparent reason to haul the vessel.

5. As Cooper and Gagliardi approached the vessel, Yard employee Dan Gatewood asked them if he could be of any assistance. Cooper and Gagliardi identified themselves as U.S. Customs Officers and told Gatewood they were interested in the vessel SEA POWER. Gatewood stated that he had lifted the vessel from the water that afternoon for Pete Rodriguez. Cooper asked Gatewood why Rodriguez had hauled his boat. Gatewood stated that Rodriguez had told him that he wanted the boat lifted because he had been adrift at sea for seventeen days and wanted to get to Miami. Rodriguez also asked Gatewood to watch the boat and not allow anyone to board it. Rodriguez said he would return in a few days.

6. Upon boarding the SEA POWER, Officer Frankel noticed an almost complete absence of the type of fishing gear that would be aboard a fishing vessel like the SEA POWER, such as extra fishing line, buoys, gloves, or hooks. A routine inspection of the vessel’s fish had revealed that the fish hold — based upon the officer’s past boating experience — appeared smaller than those of vessels of a similar size. Through Cooper and Gagliardi’s knowledge of the type of vessels built in the Key West area, they knew that the builders utilize all available space for fish hold compartments. Measurements were taken of the inside of the fish hold by Cooper and Gagliardi. It was found to be 8'8" from the aft bulkhead of the ice hold to the forward bulkhead.

7. The officers then looked through the cabin door window and observed the main cabin uppermost deck to appear longer than the measurements obtained in the fish hold. Cooper and Gagliardi then found the cabin door to be unlocked. They then went inside and measured the space from the aft fish hold bulkhead to the forward bulkhead. Their measurements totaled 10'8", thus leaving two feet of available space which was unaccounted for.

8. Cooper, Gagliardi and Frankel then went down the stairway to the forward cabin area. In plain view, Cooper and Gagliardi observed several marijuana seeds on the steps of the stairway. The officers also noticed that the stairway has been freshly painted and saw footprints in the drying paint. A further search of the forward deck and bunk area revealed additional marijuana seeds and stems. Cooper field-tested a portion of the residue, which tested positive for THC content, the active ingredient in marijuana.

9. The officers then removed the stairway ladder, which was against the forwardmost bulkhead of the vessel. As the officers faced the forwardmost bulkhead, what appeared to be a shower was to their immediate right. An inspection of the shower area revealed tile paneling on the shower walls, and finish molding strips nailed with matching paneling nails on all walls, except on the paneling nailed to the forwardmost bulkhead. That particular paneling was nailed down with common, unfinished nails. In addition, the shower wall of the forwardmost bulkhead below waist level appeared to be loose when pushed inward. Officers Gagliardi and Frankel testified that in their experience, vessel bulkheads are constructed in a solid manner to maintain the vessel’s structural strength. The officers believed the weakness in the shower wall to be an entrance to the unaccountable space. The fact that the shower lacked any valves to turn the water on and off heightened the officers’ suspicion about this area of the vessel.

10. Officer Gagliardi drilled two one-inch inspection holes through the bulkhead. Using a flashlight beam in one hole, he looked through the other hole and observed approximately two feet of voided area aft of the forward bulkhead, and another painted bulkhead. Once the hole was drilled, Officer Frankel was able to smell what he identified as marijuana. This aft bulkhead measured the approximate distance of the main fish hold. Cooper and Gagliardi further believed there was a concealed compartment between the two bulkheads. Gagliardi then cut a larger hole in the forwardmost bulkhead and found a large void space which measured 23" deep, 14'2" wide, and 5'5" high. He saw marijuana residue on the deck of the void space along the vessel’s stringers and the walls of the void space, and an access door leading to the void space from behind the vessel’s shower wall. Officer Gagliardi also noticed that the showerhead was not connected to any water supply. In addition, Officer Frankel noticed that the paint inside the hidden compartment was still wet, and he discovered two cans of paint aboard the vessel.

11. Officers Gagliardi and Cooper gathered approximately two grams of marijuana residue from the concealed compartment and forward cabin area. The vessel was then seized for United States Customs violations.

12. Claimant, whose deposition testimony was admitted into evidence, was impeached at trial by his inability to explain the discrepancies between his relatively meager income and the money he spent to purchase the vessel, by the major inconsistencies between his deposition testimony and the deposition testimony of Pedro Rodriguez, the captain of the vessel, and by his lack of knowledge concerning what he spent for the boat, and the type of fish he had hoped to sell to a restaurant in which he claimed to be partner.

By way of example:

a) Ñapóles testified that the reason that Rodriguez took the SEA POWER out to sea at Ñapóles request was for a test run and to catch some fish that Ñapóles would sell at a Miami-area restaurant. Rodriguez testified that he, Rodriguez, approached Ñapóles to take the boat out fishing because Rodriguez’s boat was in need of repair.

13. The captain of the vessel, Pedro Rodriguez was also impeached in his deposition testimony. By way of example:

a) Rodriguez claimed in his deposition testimony that he was fishing seventy miles northwest off the Dry Tortugas — a group of.Islands west of Key West — and had drifted southward to a point off the west coast of Cuba, where he was spotted by the Coast Guard. The Coast Guard message traffic however, reflects that when the Coast Guard boarded the SEA POWER, Rodriguez told the Coast Guard officers that he had been fishing the Rosario Banks, a point over 400 miles southwest of the Dry Tortugas. The Rosario Banks statement by Rodriguez corroborates the informant’s tip that the SEA POWER traveled to Jamaica to pick up a load of marijuana, because the Rosario Banks, and not the Dry Tortugas, are in line with the route that a vessel might take from the United States to Jamaica and back. In addition, the current north of the Dry Tortugas flows South/Southeast, and below the Dry Tortugas, to the East. In addition, the current in the Yucatan Channel flows strongly to the north. Rodriguez, therefore, could not, as he claimed in his deposition, have drifted Southward from a point north of the Dry Tortugas to the point where he was spotted by the Coast Guard, because he would have had to drift against three strong and different currents.

b) Rodriguez testified that he took showers while on board the vessel, yet the shower was not connected and lacked “On” or “Off” valves.

CONCLUSIONS OF LAW

1. To establish that forfeiture is appropriate in this cause, the government need only show that there was probable cause that one of the statutes under which the government is proceeding has been violated. United States v. One (1) 1982 28' International Vessel, 741 F.2d 1319, 1321 (11th Cir.1984).

2. Probable cause is defined as a reasonable ground for belief of guilt supported by less than prima facie proof, but more than mere suspicion. United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980); United States v. One 1975 Ford F100 Pick-up Truck, 558 F.2d 755, 756 (5th Cir.1977).

3. When the defendant vessel, the SEA POWER, was boarded by United States Customs Patrol Officers Gagliardi and Cooper in Key West on October 3, 1984, a field-test for marijuana that was discovered in plain view proved positive, and approximately 2 grams of marijuana were subsequently recovered in and around a secret compartment found below the deck of the vessel. The presence of the marijuana in the defendant vessel establishes that the vessel — which by all accounts had been traveling for some time outside the United States — facilitated the receipt, possession and concealment of a controlled substance and contraband article in violation of 19 U.S.C. § 1595a, 21 U.S.C. § 881, and 49 U.S.C. § 781.

4. “There can be no question that marijuana constitutes contraband under the statute,” and “a vehicle is subject to forfeiture no matter how small the quantity of contraband found. For purposes of forfeiture, positive results in a field test furnish sufficient proof as to the existence of contraband.” 28' International Vessel, 741 F.2d at 1322. The Court therefore concludes that the United States of America has met its burden of establishing probable cause for the seizure of the SEA POWER and the institution of this forfeiture action.

5. With respect to the initial boarding of the SEA POWER, Customs officials, may, pursuant to 19 U.S.C. § 1581(a), without a warrant or any suspicion of wrongdoing, board and search a vessel having access to the open seas. United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). Section 1581(a) has been interpreted to authorize a stop “without even a modicum of suspicion.” 28' International Vessel, 741 F.2d at 1321. The statute may be relied upon even when there is no intent to inspect the vessel’s documents. Similarly, when a vessel not actually in the water is spotted at or near a bay or similar opening to international waters and the vessel is large enough to have travelled outside the United States, customs interests may well be implicated. See United States v. Hernandez, 668 F.2d 824, 827 (5th Cir.1982) (Unit B). The SEA POWER was large enough to traverse international waters, and was searched by the Customs officers at a point of immediate access to waters opening on to international waters. The initial boarding was therefore properly made pursuant to 19 U.S.C. § 1581(a).

6. Moreover, even if a warrant-less boarding and search requires a reasonable suspicion, see United States v. Kent, 691 F.2d 1376 (11th Cir.1982), cert. denied, 462 U.S. 1119, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983), a tip from a known, proven informant can justify a reasonable suspicion of criminal activity. See id. at 1379. The Court concludes that even if reasonable suspicion were required, the tip of the confidential, reliable informant would have itself supplied the requisite reasonable suspicion. That suspicion is made even stronger by the unexplained hauling of the boat out of the water, and the warrantless boarding and search was therefore proper.

7. The Customs boarding and search in this case were also justifiable as a border search. The government’s sovereign authority to protect itself justifies a warrantless search without probable cause or reasonable suspicion of persons or things crossing the border into the United States and of their vehicles. Torres v. Puerto Rico, 442 U.S. 465, 472-73, 99 S.Ct. 2425, 2430-31, 61 L.Ed.2d 1 (1979); United States v. DeGutierrez, 667 F.2d 16, 18-19 (5th Cir.1982) (Unit B). These searches may be concluded either at international border checkpoints or their functional equivalents. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539-40, 37 L.Ed.2d 596 (1973); United States v. Mcpherson, 664 F.2d 69 (5th Cir. 1981) (Unit B).

8. To validate a border search, it must be shown that the conveyance crossed an international border. United States v. Bachner, 706 F.2d 1121, 1128 (11th Cir. 1983). It is not necessary for customs agents to actually view the border crossing United States v. Moore, 638 F.2d 1171, 1173 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); United States v. Ingham, 502 F.2d 1287, 1290 (5th Cir.1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777 (1975).

9. In this case, the officer received a tip from a confidential reliable informant who had been proven accurate in the past that the SEA POWER was going to Jamaica to pick up a load of marijuana and return to the United States. The officers noticed that boat had vanished from the place it was being stored, and had returned sometime thereafter. They were informed by a boatyard employee that the captain of the vessel had been at sea for some length of time. Furthermore, although the boat was brand new and in no apparent need of repair, it had been hauled out of the water.

10. Based on these observations, coupled with the information provided in the tip, the Customs officers could reasonably conclude that a border crossing had taken place and act accordingly. They are “entitled to draw reasonable inferences from circumstances and base their actions on common sense judgments.” United States v. Bachner, 706 F.2d at 1128. Accordingly, the Customs officers could reasonably conclude that a border crossing had recently taken place and their boarding and subsequent search of the vessel was appropriate.

11. Once the officers were aboard the vessel and noticed that there was space beneath the deck that could not be accounted for and that the vessel was in no obvious need of repair yet was hauled out of the water, they were furnished with the reasonable suspicion necessary to examine the interior of the vessel “whose construction reveals a capacity to conceal significant amounts of cargo.” 28' International Vessel, 741 F.2d at 1321, quoting United States v. Whitmire, 595 F.2d 1303, 1315 (5th Cir.1979).

12. The officers’ further inspection of the lower deck, and the discovery of the small fish hold, the wobbly shower wall, the shower with no valves and the non-matching nails on the wobbly shower wall warranted the further inspection which revealed the hidden compartment, which in turn resulted in the discovery of the marijuana residue giving rise to the forfeiture. See id. The search and subsequent seizure of the vessel were therefore entirely proper, and the government has met its burden of showing probable cause to believe that the SEA POWER was used to transport or facilitate the transportation of contraband in violation of the aforementioned statutes.

13. Once the government has established probable cause, the burden of proof shifts to claimant to prove a defense to the forfeiture. Ford F100 Pick-up Truck, 558 F.2d at 756; United States v. One 1971 Chevrolet Corvette Automobile, 496 F.2d 210, 212 (5th Cir.1974); United States v. One (1) 30 Foot 1982 Morgan Vin., 597 F.Supp. 589, 591 (M.D.Fla.1984). The claimant must prove a defense by a preponderance of the evidence. Ford F100 Pickup Truck, 558 F.2d at 756.

14. “Innocence [of the claimant], in and of itself, is an insufficient defense to forfeiture,” United States v. One (1) 1957 Rockwell Aero Commander 680 Aircraft, 671 F.2d 414, 417 (10th Cir.1982). To prevail on the defense of innocence, a claimant must establish that 1) he was not involved in the wrongful activity, 2) he was not aware of the wrongful activity, and 3) he had done all that reasonably could be expected to prevent the proscribed use of his property. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452; 28' Foot International Vessel, 741 F.2d at 1322.

15. The Court concludes that claimant failed to establish the defense of innocence by a preponderance of the evidence. Indeed, the court finds that claimant was not uninvolved in the illegal ability; he was in fact knowledgable of the unlawful activity.

16. The Court further concludes that claimant not only did not do all that he could reasonably be expected to do to prevent the illegal use of his vessel, he actually constructed this vessel to smuggle merchandise into the United States in violation of 19 U.S.C. § 1703, as evidenced by the presence of a false or secret compartment. A false or secret compartment is a prospective storage area that is not apparent to the average user of a conveyance and serves no legitimate function. The unusual location of the compartment opening behind the paneled shower wall demonstrates that it was built in such a way as to remain hidden from view. The deposition testimony of Pedro Blanco Serrano demonstrates that claimant knew about the compartment.

17. Although claimant, the carpenter Lazaro Llanes and the fiberglass man, Pedro Serrano, all claimed that the compartment was to be used for refrigeration, their explanation was simply not credible. Customs Patrol Officer Gagliardi testified that the size of the compartment was far larger than necessary to hold the refrigeration equipment that might be used in such a vessel. In addition, although Llanes’ deposition indicates that he was directed to seal up the compartment, a large access point remained available behind one of the shower walls. Finally, the fact that the compartment smelled like marijuana when opened, contained marijuana residue and had been freshly painted indicates the purpose for which the compartment was used. The compartment was used to hide the contraband contained in the vessel, and the paint was used in an effort to conceal the SEA POWER’S marijuana smuggling activities.

18. Based on the foregoing, this Court is of the opinion that the SEA POWER is subject to forfeiture for violations of 19 U.S.C. §§ 1595a(a), 1703, 21 U.S.C. § 881, and 49 U.S.C. § 781, and the United States is entitled to a Final Judgment of Forfeiture.


author: VIETOR, Chief Judge.

text:
    Walter L. WALKER, Plaintiff, v. David SCURR, et al., Defendants.
    Civ. No. 83-313-D.
    United States District Court, S.D. Iowa, C.D.
    Sept. 9, 1985.

      Walter L. Walker, pro se.
    Prisoner Assistance Clinic, College of Law, University of Iowa, Iowa City, Iowa, for plaintiff.
    Thomas J. Miller, Atty. Gen., State of Iowa, Gordon E. Allen, Sp. Asst. Atty. Gen., Mark Hunacek, Asst. Atty. Gen., Des Moines, Iowa, for defendants.
   VIETOR, Chief Judge.

The amended motion of plaintiffs Walter Walker and Leslie Fields to amend original complaint and defendants’ resistance are before the court.

Plaintiffs Walker and Fields, Native American inmates of the Iowa State Penitentiary (ISP), are proceeding pro se in this civil rights action under 42 U.S.C. § 1983. Among the defendants are David Scurr, a former warden at ISP, Crispus Nix, the present warden at ISP, and James Menke, the former security director at ISP.

In the original complaint, it is alleged in paragraph 19 that defendants Scurr and Menke, in concert with others, negligently allowed a loss, theft or destruction of plaintiff Walker’s religious, legal and cultural objects and property.

Plaintiffs Walker and Fields now seek to amend to allege that defendants Scurr, Menke and Nix, in concert with others, negligently and/or with malicious intent allowed the loss, theft or destruction of religious, legal and cultural objects and property of each of the two plaintiffs. Their proposed amendment further alleges that they filed timely claims with the State Appeals Board and properly exhausted the claim procedures before the Board, a prerequisite to commencing an action in an Iowa court under Iowa’s State Tort Claims Act, Iowa Code Chapter 25A. Their proposed amendment further alleges that they are indigent and therefore unable to maintain their action in Iowa’s small claims court. In paragraph 8 of their amendment to motion to amend they allege, and support by Exhibit 8 attached thereto, that they wrote the district court of Lee County explaining their desire to file small claims and enclosed a pauper’s affidavit, and received a reply from the office of the Lee County Attorney, on behalf of the clerk of court, telling them: “The courts here have determined that inmates are not ‘indigent’ under Iowa law and that a ‘basic’ right must be involved before a filing fee can be waived.” The letter further advised that they must pay a $12 filing fee, a $15 per defendant service fee and $10 for each witness to be subpoenaed.

Plaintiffs’ legal theory is that they have been deprived of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution, an actionable claim under 42 U.S.C. § 1983.

A loss of a state prisoner’s property by a state employee acting under color of state law, even though it is occasioned by mere negligence on the part of the state employee, is a deprivation of property within the meaning of the Fourteenth Amendment to the United States Constitution. Parratt v. Taylor, 451 U.S. 527, 536-37, 101 S.Ct. 1908, 1913-14, 68 L.Ed.2d 420 (1981). The loss, however, whether negligently or intentionally caused by the state employee, is not a loss “without due process of law” within the meaning of the Fourteenth Amendment if the state has available an adequate or meaningful post-deprivation remedy. Hudson v. Palmer, — U.S.-, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, supra.

This court concludes that Iowa Code Chapter 25A provides an adequate and meaningful post-deprivation remedy for any person to whom it is available. However, if it is not available to those who cannot, because of indigency, pay the required fees, it is certainly not an adequate and meaningful remedy for them, and the deprivation of property then is one “without due process of law.” See Frazier v. Collins, 538 F.Supp. 603, 608 (E.D.Va. 1982); Graham v. Mitchell, 529 F.Supp. 622, 626 (E.D.Va.1982).

The proposed amendment adequately alleges that plaintiffs sought and were denied a waiver of fees in state court after they exhausted the procedures before the State Appeals Board. Defendants’ contention that they should have sought a waiver after receiving the County Attorney’s letter is not well taken. The proposed amendment indicates that they asked for a waiver when they wrote the clerk of court in the first instance and they were told in response that they “must forward to” the clerk and sheriff requisite fees, and they were told that “[t]he courts here have determined that inmates are not indigent under Iowa law and that a ‘basic’ right must be involved before a filing fee can be waived.” The plaintiffs’ proposed amendment adequately alleges that the state courthouse door was closed to them because of indigency, and they do not have to allege that they tried a second time to get fees waived.

Defendants also contend that plaintiffs’ alleged financial inability to pursue a state post-deprivation remedy is irrelevant because they sought to pursue that remedy after Chapter 25A’s time limitation for commencing suit had expired. The statute of limitations is a defense to be raised by pleading or motion (or waived) after a plaintiff commences a suit. State ex rel. Krupke v. Witkowski, 256 N.W.2d 216, 218 (Iowa 1977). The availability of such a defense, or any other defense, is irrelevant to the question of whether the state has available to the plaintiffs an adequate and meaningful post-deprivation remedy for the alleged deprivation of property.

The plaintiffs’ proposed amendment adequately alleges lack of an adequate and meaningful post-deprivation remedy, and therefore their motion to amend, as amended, is granted, and IT IS ORDERED that their complaint stands amended as set forth in their motion to amend, as amended.

      . Iowa Code §§ 25A.3 & 25A.5.

      . Plaintiffs’ claims are for less than $2000, so they would have to be litigated under Iowa’s small claims procedure. Iowa Code Chapter 631.

      . Iowa Code § 25A.13.

      . Whether there is a statute of limitations defense to plaintiffs’ section 1983 claims in this court is not now before the court and is not decided.


author: YOUNG, District Judge.

text:
    Manfred E. BIELASS and Lois Bielass, Plaintiffs, v. NEW ENGLAND SAFE SYSTEM, INC. and the United States of America, Defendants.
    Civ. A. No. 84-0435-Y.
    United States District Court, D. Massachusetts.
    Sept. 10, 1985.
    Peter M. Malaguti, Boston, Mass., Bingham & Evangelista, Lynnfield, Mass., for plaintiffs.
    Martha Sosman, Asst. U.S. Atty., Boston, Mass., for U.S.
    John Mee, Johnson, Mee & May, Boston, Mass., for New England Safe System, Inc.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiffs Manfred and Lois Bielass (“the Bielasses”) brought this action against the defendants New England Safe System, Inc. (“Safe System”) and the United States of America (“the United States”) for damages allegedly resulting from the auction sale of the Bielasses’ household goods. The Bielasses assert subject matter jurisdiction pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1346. The United States has moved for summary judgment in its favor on all counts asserted against it. For the reasons that follow, the motion is allowed in part and denied in part.

I. Factual Background

The Bielasses have alleged the following facts: In late 1979, the Bielasses, American citizens who had been residing in West Germany for approximately 18 years, decided to move back to the United States. During their years in West Germany, they had accumulated a large amount of household goods. The Bielasses arranged to have most of these belongings shipped from West Germany to the United States, and on or about March 26, 1980, the goods arrived at the port in Boston. At that time, they made arrangements with Safe System to store their possessions until they became settled in the United States.

Safe System allegedly informed the Bielasses that they could leave their goods, for an indefinite period of time, in the possession of the United States Customs Service. Acting upon this advice from Safe System, the Bielasses permitted the goods to be removed from the ship and placed in the custody of the Customs Service in a general order warehouse. However, no one ever made “entry” of the goods — that is, no one ever filed the required documentation with the Customs Service to get the shipment released from Customs Service custody, as provided by 19 U.S.C. § 1484 and 19 C.F.R. § 141.4. Normally, entry of goods is to be made within five business days after the arrival of the goods. 19 C.F.R. § 141.5. Because no entry was made, the Bielasses’ goods were placed in a general order warehouse under the custody of the Customs Service. See 19 U.S.C. § 1490(a) (when entry is not made in a timely manner, the customs officer “shall take the merchandise into his custody and send it to a bonded warehouse or public store, to be held at the risk and expense of the consignee until entry is made or completed and the proper documents are produced, or a bond given for their production”); 19 C.F.R. § 127.1.

On several occasions between March 1980 and June 1981, Safe System representatives corresponded with the Bielasses and informed them of the storage charges that had been incurred. According to the Bielasses, in June 1981 they were informed by Safe System that their goods could be auctioned off by the Customs Service after two years in general order storage, but that the possessions “were safe for up to two years.” Complaint Ml 14-15. In fact, the Customs Service considered the goods to be “unclaimed or abandoned” after they remained unentered for one full year after their arrival. 19 U.S.C. § 1491(a); 19 C.F.R. §§ 127.11, 127.21. Consequently, the goods were sold at public auction in June 1981. The Customs Service gave no prior notice of the auction to either the Bielasses or Safe System, and it was not until November 27, 1981 that the Bielasses learned that their possessions had been sold.

After filing a claim for damage with the Customs Service, the Bielasses brought this action against Safe System (for alleged negligence, conversion, and strict liability) and against the United States for alleged negligence, strict liability, and breach of a bailment contract.

II. The Tort Claims

The United States may not be held liable for torts committed by its employees except where there has been a clear waiver of sovereign immunity. Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). The Federal Tort Claims Act (“the Act”) provides that the United States shall be liable, to the same extent as a private party, “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). However, the Act’s broad waiver of sovereign immunity is subject to 13 enumerated exceptions, including “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by an officer of customs or excise or any other law-enforcement officer.” 28 U.S.C. § 2680(c).

The question presented by the pending motion is whether the exemption of § 2680(c) bars the Bielasses’ tort claims against the United States. The Supreme Court recently addressed the scope of the § 2680(c) exemption in Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984). In that case, the Customs Service seized the plaintiff’s art collection on the suspicion that the collection had been illegally smuggled into the country. After the plaintiff was acquitted of a smuggling charge, the Customs Service notified him that the art objects were subject to civil forfeiture. The plaintiff responded by filing a petition for relief from the forfeiture, which was granted, and the objects were returned to him. The plaintiff then sued the government, alleging that the property had been damaged while in the possession of the Customs Service.

The Supreme Court held that the plaintiffs suit was barred by the exemption of § 2680(c). It rejected the plaintiff’s argument that the exemption was intended only to cover claims for damages attributable to an illegal detention or for damages “caused by the detention itself.” Id. 104 S.Ct. at 1523. Instead, the Court construed the language of § 2680(c) broadly and held that the exemption applied to “any claim ‘arising out of’ the detention of goods, and includes a claim resulting from negligent handling or storage of detained property.” Id. at 1524.

The Bielasses argue that the reach of Kosak should be limited to its particular facts, and that the decision is not controlling here. They accurately point out that the Supreme Court expressly declined to construe the meaning of the word “detention”, as used in § 2680(c), since the plaintiff in that case had conceded that his goods were “lawfully detained” by customs officers. Id. at 1523 n. 8. The Bielasses do not made such a concession here — rather, they contend that there was no “detention” of their goods at all. They argue that, because they voluntarily chose to have the goods stored by the Customs Service and could have claimed the goods by making “entry” and fulfilling other procedural requirements, the § 2680(c) exemption simply does not apply.

This Court is not persuaded by that argument, particularly given the Supreme Court’s broad interpretation of § 2680(c) in Kosak. An identical argument was recently rejected by the court in Audio Systems, Inc. v. United States, No. C83-81V (W.D. Wash. May 24, 1984), which held that the word “detention” embraces the possession of imported goods which are stored in a general order warehouse pending proper entry and payment of import duties. Under the circumstances of this case, where the Bielasses’ goods were held by the Customs Service for failure to make entry, this Court holds that the goods were “detained” within the meaning of § 2680(c). Moreover, the Bielasses’ claims that the Customs Service improperly disposed of those goods constitute claims “arising out of” the detention. See Kosak, supra, 104 S.Ct. at 1524.

For these reasons, the Bielasses’ tort claims against the United States are exempt from coverage of the Federal Tort Claims Act and are consequently dismissed.

III. The Breach of Contract Claim

In addition to their tort claims, the Bielasses have alleged that the Customs Service breached “a contract of bailment by which the Customs Service undertook to store, control and take care of the goods.” Complaint Till 37-38. The Bielasses have not alleged that there was any express contract or agreement between them and the Customs Service. Although they have not addressed this issue in their papers opposing the present motion, the Bielasses apparently contend that a bailment contract can be implied from the circumstances. An implied contract is “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the circumstances, their tacit understanding.” Baltimore and Ohio R.R. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 426, 67 L.Ed. 816 (1923).

There is nothing in the record to indicate that the Bielasses themselves had any direct contact with the Customs Service prior to the auction sale in June 1981. However, the Bielasses have alleged that Safe System, acting on their behalf, “arranged” with the Customs Service to have their goods removed from the ship and placed in a general order warehouse. Complaint 1Í12. This allegation is not supported by affidavit and is contradicted by a sworn statement from Stephan Busse, the president of Safe System, indicating that the Customs Service, in cooperation with the port authority, arranged the transfer of the Bielasses’ goods “without any arrangement on the part of [Safe System].” Answers by Stephan Busse to Plaintiff’s First Set of Interrogatories, No. 25 (Oct. 31, 1984) (hereinafter referred to as “Busse Answers”). The United States has also argued that the Customs Service had no agreement or understanding with the Bielasses, but simply took custody of goods “that had been unloaded and left at the port without being entered.”

The Bielasses have also alleged that Safe System filed with the Customs Service several documents listing the names and addresses of the Bielasses, Safe System, and the shipper who transported the goods across the Atlantic Ocean. Attached to the complaint are two Customs Service forms — a “Carriers Certificate” and a “Cargo Declaration” — which include those names and addresses and which allegedly were filed with the Customs Service. Complaint ¶ 12, Exhibits B & C. This allegation is also contradicted by Busse, who has stated that the “Carriers Certificate and Delivery Order [were] both prepared but not filed with U.S. Customs (as not customary).” Busse Answers, No. 23(a). The United States has not addressed the issue of the Customs Service forms — an affidavit executed by John Linde, the District Director of the Customs Service, states that no “entry” documents were filed with the Customs Service, but does not indicate whether any other kinds of documents were filed. Linde Affidavit 119.

In summary, there appears to have been little or no direct contact between Safe System and the Customs Service relating to the actual transfer of the Bielasses’ goods from the port to the general order warehouse. On the other hand, Busse has stated that a Safe System representative contacted the Customs Service at least three times between March 1980 and the June 1981 auction. Busse Answers, No. 19. These contacts are described as inquiries regarding “storage charges on behalf of the plaintiff.” Id. It also appears that Safe System may have relied on the Customs Service to give it notice prior to any scheduled auction of the Bielasses’ property — Busse described a June 22, 1981 telephone conversation between him and Mr. Bielass in which “Bielass was advised about correction from two to one year storage as per our letters dated June 18, and 19, 1981, and that we will advise him immediately about any notification regarding a possible auction should we receive such notification from Customs.” Busse Answers, No. 14.

If Safe System did in fact expect prior notification from the Customs Service before any auction took place, such reliance would seem to have been reasonable in light of federal regulations which require the Custom Service to give 30 days notice to the owners of unclaimed merchandise, or their appropriate representatives, before the merchandise is sold at public auction. 19 C.F.R. § 127.24. The Bielasses have alleged that the crates containing their belongings were marked with their name and address. Complaint 117. If so, it would appear that the Customs Service, had it followed its own regulations, could have provided prior notice without much difficulty. Neither the United States’ brief nor the Linde affidavit refer to the Customs Service regulations pertaining to notice.

On this motion for summary judgment, the Court must review the record in the light most favorable to the Bielasses and “indulge all inferences” favorable to them. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). The Bielasses would have a stronger argument if they had specifically addressed the breach of contract issue in their opposing papers and had filed supporting affidavits. “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading____” Fed.R.Civ.P. 56(e); see Hahn, supra, 523 F.2d at 466. Nonetheless, this Court concludes that summary judgment on this claim would be inappropriate at this stage of the proceedings. On the existing record, a reasonable jury could infer that either the Bielasses, or Safe System acting on behalf of the Bielasses, had reached at least a tacit understanding with the Customs Service that the Bielasses’ belongings would be placed in a general order warehouse and would not be sold at auction without prior notice. Had the Customs Service complied with its own regulations regarding notice, the goods may very well have been reclaimed by the Bielasses prior to the scheduled date of the auction. Under these circumstances, the Court rules that there is a genuine issue of fact regarding the existence of an implied contract of bailment.

For the foregoing reasons, the United States’ motion for summary judgment is ALLOWED with respect to the Bielasses’ tort claims, but DENIED with respect to the breach of contract claim.